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MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - LONG TITLE [25th July 1978] [{1}or the Domestic Proceedings (Northern Ireland) Order 1980|] or any corresponding enactments in force in any part of Great Britain, the Isle of Man or any of the Channel Islands. B>(2) On a petition for divorce in such a case as is mentioned in paragraph (1), the court may treat the decree or order as sufficient proof of any adultery, desertion or other fact by reference to which it was granted, but shall not grant a decree of divorce without receiving evidence from the petitioner. B>(3) Where a petition for divorce in such a case follows a decree of judicial separation or (without prejudice to paragraph (4) [{1}or (5)]) an order containing a provision exempting [{1}or having the effect of exempting] one party to the marriage from the obligation to cohabit with the other, for the purposes of that petition a period of desertion immediately preceding the institution of the proceedings for the decree or order shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since it was granted, be deemed immediately to precede the presentation of the petition. B>(4) For the purposes of Article 3(2)( c ) the court may treat as included in a period during which the respondent has deserted the petitioner either or both of the following periods B> [{2}( a ) any period during which there is in force an injunction granted by the High Court or a county court which excludes the respondent from the matrimonial home; C >>( b ) any period during which there is in force an order made by a court of summary jurisdiction under Article 18(2)(i) of the Domestic Proceedings (Northern Ireland) Order 1980, or such an order made as an interim exclusion order by virtue of Article 21 of that Order which gives the petitioner the exclusive use of the matrimonial home.] [(5) Where (a)a petition for divorce is presented after the date on which the repeal by the Domestic Proceedings (Northern Ireland) Order 1980 of the Summary Jurisdiction (Separation and Maintenance) Act (Northern Ireland) 1945 comes into operation, and (b)an order made under that Act of 1945 containing a provision exempting the petitioner from the obligation to cohabit with the respondent is in force on or after that date by virtue of paragraph 1 or 2 of Schedule 2 to that Order of 1980, MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 7 7.(1) The respondent to a petition for divorce in which the petitioner alleges five years' separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage. (2) Where the grant of a decree is opposed by virtue of this Article, then (a)if the court finds that the petitioner is entitled to rely in support of his petition on the fact of five years' separation and makes no such finding as to any other fact mentioned in Article 3(2), and (b)if apart from this Article the court would grant a decree on the petition, (3) For the purposes of this Article hardship shall include the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 8 8.(1) If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation. (2) If during any such adjournment the parties resume living with each other in the same household, no account shall be taken of that fact for the purposes of the proceedings. (3) The power conferred by this Article is additional to any other power of the court to adjourn proceedings. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 9 9. Provision may be made by rules of court for enabling the parties to a marriage, or either of them, on application made either before or after the presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected with, the proceedings for divorce which are contemplated or, as the case may be, have begun, and for enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the agreement or arrangement and to give such directions, if any, in the matter as it thinks fit. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 10 10.(1) In the case of a petition for divorce (a)the court may, if it thinks fit, direct all necessary papers in the matter to be sent to the Crown Solicitor for Northern Ireland ("the Crown Solicitor"), who shall, under the directions of the Attorney-General, instruct counsel to argue before the court any question in relation to the matter which the court considers it necessary or expedient to have fully argued; (b)any person may at any time during the progress of the proceedings or before the decree nisi is made absolute give information to the Crown Solicitor on any matter material to the due decision of the case, and the Crown Solicitor may thereupon take such steps as the Attorney-General considers necessary or expedient. (2) Where the Crown Solicitor intervenes or shows cause against a decree nisi in any proceedings for divorce, the court may make such order as may be just as to the payment by other parties to the proceedings of the costs incurred by him in so doing or as to the payment by him of any costs incurred by any of those parties by reason of his so doing. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 11 11.(1) Where a decree of divorce has been granted but not made absolute, then, without prejudice to Article 10, any person (excluding a party to the proceedings other that the Crown Solicitor) may show cause why the decree should not be made absolute by reason of material facts not having been brought before the court; and in such a case the court may (a)notwithstanding anything in Article 3(6) (but subject to Articles 12(2) to (5) and 44) make the decree absolute; or (b)rescind the decree; or (c)require further inquiry; or (d)otherwise deal with the case as it thinks fit. (2) Where a decree of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court, and on that application the court may exercise any of the powers mentioned in sub-paragraphs (a) to (d) of paragraph (1). MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 12 12.(1) Where in any case the court has granted a decree of divorce on the basis of a finding that the petitioner was entitled to rely in support of his petition on the fact of two years' separation coupled with the respondent's consent to a decree being granted and has made no such finding as to any other fact mentioned in Article 3(2), the court may, on an application made by the respondent at any time before the decree is made absolute, rescind the decree if it is satisfied that the petitioner misled the respondent (whether intentionally or not) about any matter which the respondent took into account in deciding to give his consent. (2) The following provisions of this Article apply where (a)the respondent to a petition for divorce in which the petitioner alleged two years' or five years' separation coupled, in the former case, with the respondent's consent to a decree being granted, has applied to the court for consideration under paragraph (3) of his financial position after the divorce; and (b)the court has granted a decree on the petition on the basis of a finding that the petitioner was entitled to rely in support of his petition on the fact of two years' or five years' separation (as the case may be) and has made no such finding as to any other fact mentioned in Article 3(2). (3) The court hearing an application by the respondent under paragraph (2) shall consider all the circumstances, including the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties, and the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first; and the court shall not make the decree absolute unless the court, by order, has declared that it is satisfied (a)that the petitioner should not be required to make any financial provision for the respondent, or (b)that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances, or (c)that there are circumstances making it desirable that the decree should be made absolute without delay. (4) The court shall not make an order declaring that it is satisfied as mentioned in paragraph (3)(c) unless it has obtained a satisfactory undertaking from the petitioner that he will bring the question of the financial provision for the respondent before the court within a specified time. (5) If, following an application under paragraph (2)(a) which has not been withdrawn, the court makes absolute a decree of divorce without having made an order under paragraph (3) the decree shall be voidable at the instance of the respondent or of the court; but, if such an order was made, no person shall be entitled to challenge the validity of the decree on the ground that the conditions prescribed by paragraphs (3) and (4) were not fulfilled. (6) If the court refuses to make an order under paragraph (3), it shall, on an application by the petitioner, make an order declaring that it is not satisfied as mentioned in that paragraph. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 13 13.(1) A marriage celebrated after the commencement of this Article shall be void on the following grounds only, that is to say (a)that the parties are within the prohibited degrees of relationship; (b)that it is not a valid marriage under the provisions of the Age of Marriage Act (Northern Ireland) 1951 (persons under 16); (c)that it is not a valid marriage by reason of non-compliance with any statutory provision or rule of law governing the formation of marriage; (d)that at the time of the marriage either party was already lawfully married; (e)that the parties are not respectively male and female; (f)in the case of a polygamous marriage entered into outside Northern Ireland, that either party was at the time of the marriage domiciled in Northern Ireland. (2) For the purposes of paragraph (1)(f) a marriage may be polygamous although at its inception neither party has any spouse additional to the other. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 14 14. A marriage celebrated after the commencement of this Article shall be voidable on the following grounds only, that is to say (a)that the marriage has not been consummated owing to the incapacity of either party to consummate it; (b)that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; (c)that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake or unsoundness of mind or otherwise; (d)that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of the Mental Health Act (Northern Ireland) 1961 of such a kind or to such an extent as to be unfitted for marriage; (e)that at the time of the marriage the respondent was suffering from venereal disease in a communicable form; (f)that at the time of the marriage the respondent was pregnant by some person other than the petitioner. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 15 15.(1) The court has jurisdiction to grant a decree of nullity (a)of a marriage which is void; or (b)on the petition of a party to the marriage, of a marriage which is voidable. (2) Articles 3(6), 10 and 11 shall apply in relation to proceedings for nullity of marriage as if for any reference in those provisions to divorce there were substituted a reference to nullity of marriage. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 16 16.(1) The court shall not, in proceedings instituted after the commencement of this Article, grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court (a)that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and (b)that it would be unjust to the respondent to grant the decree. (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 it is satisfied that proceedings were instituted within three years from the date of the marriage. (3) Without prejudice to paragraphs (1) and (2), the court shall not grant a decree of nullity by virtue of Article 14 on the grounds mentioned in paragraph (e) or (f) of that Article unless it is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 17 17.(1) Where, apart from this Order, any matter affecting the validity of a marriage would fall to be determined (in accordance with the rules of private international law) by reference to the law of a country other than Northern Ireland, nothing in Article 13, 14 or 16(1) shall (a)preclude the determination of that matter as aforesaid; or (b)require the application to the marriage of the grounds or bar there mentioned except so far as applicable in accordance with those rules. (2) In the case of a marriage which purports to have been celebrated under the Foreign Marriage Acts 1892 to 1947 or has taken place outside Northern Ireland and purports to be a marriage under common law, Article 13 is without prejudice to any ground on which the marriage may be void under those Acts or, as the case may be, by virtue of the rules governing the celebration of marriages outside Northern Ireland under common law. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 18 18. A decree of nullity granted after the commencement of this Article in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 19 19.(1) A petition for judicial separation may be presented to the court by either party to a marriage on the ground that any such fact as is mentioned in Article 3(2) exists, and the provisions of Article 4 shall apply accordingly for the purposes of a petition for judicial separation alleging any such fact, as they apply in relation to a petition for divorce alleging that fact. (2) On a petition for judicial separation it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent, but the court shall not be concerned to consider whether the marriage has broken down irretrievably, and if it is satisfied on the evidence of any such fact as is mentioned in Article 3(2) it shall, subject to Article 44, grant a decree of judicial separation. (3) Articles 8 and 9 shall apply for the purpose of encouraging the reconciliation of parties to proceedings for judicial separation and of enabling the parties to a marriage to refer to the court for its opinion of an agreement or arrangement relevant to actual or contemplated proceedings for judicial separation, as they apply in relation to proceedings for divorce. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 20 20.(1) Where the court grants a decree of judicial separation it shall no longer be obligatory for the petitioner to cohabit with the respondent. (2) If while a decree of judicial separation is in force and the separation is continuing either of the parties to the marriage dies intestate as respects all or any of his or her real or personal property, the property as respects which he or she died intestate shall devolve as if the other party to the marriage had then been dead. Para.(3) rep. with saving by 1980 NI 5 art.42(1)(2)(b) schs.2, 4 MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 21 21.(1) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the High Court to have it presumed that the other party is dead and to have the marriage dissolved, and the High Court may, if satisfied that such reasonable grounds exist, grant a decree of presumption of death and dissolution of the marriage. (2) In any proceedings under this Article the fact that for a period of seven years or more the other party to the marriage has been continually absent from the petitioner and the petitioner has no reason to believe that the other party has been living within that time shall be evidence that the other party is dead until the contrary is proved. (3) Articles 3(6), 10 and 11 shall apply to a petition and a decree under this Article as they apply to a petition for divorce and a decree of divorce respectively. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 22 22. If in any proceedings for divorce, judicial separation or nullity of marriage the respondent alleges and proves any such fact as is mentioned in paragraph (2) of Article 3 or in Article 13(1) or Article 14 (treating the respondent as the petitioner and the petitioner as the respondent for the purposes of the said paragraph (2), and treating the petitioner as the respondent for the purposes of paragraph (b), (e) or (f) of Article 14), the court may give to the respondent the relief to which he would have been entitled if he had presented a petition seeking that relief. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 23 23.(1) The financial provision orders for the purposes of this Order are the orders for periodical or lump sum provision available (subject to the provisions of this Order) under Article 25 for the purpose of adjusting the financial position of the parties to a marriage and any children of the family in connection with proceedings for divorce, nullity of marriage or judicial separation and under Article 29(6) on proof of neglect by one party to a marriage to provide, or to make a proper contribution towards, reasonable maintenance for the other or a child of the family, that is to say (a)any order for periodical payments in favour of a party to a marriage under Article 25(1)(a) or 29(6)(a) or in favour of a child of the family under Article 25(1)(d), (2) or (4) or 29(6)(d); (b)any order for secured periodical payments in favour of a party to a marriage under Article 25(1)(b) or 29(6)(b) or in favour of a child of the family under Article 25(1)(e), (2) or (4) or 29(6)(e); and (c)any order for lump sum provision in favour of a party to a marriage under Article 25(1)(c) or 29(6)(c) or in favour of a child of the family under Article 25(1)(f), (2) or (4) or 29(6)(f); (2) The property adjustment orders for the purposes of this Order are the orders dealing with property rights available (subject to the provisions of this Order) under Article 26 for the purpose of adjusting the financial position of the parties to a marriage and any children of the family on or after the grant of a decree of divorce, nullity of marriage or judicial separation, that is to say (a)any order under paragraph (1)(a) of that Article for a transfer of property; (b)any order under paragraph (1)(b) of that Article for a settlement of property; and (c)any order under paragraph (1)(c) or (d) of that Article for a variation of settlement. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 24 24. On a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 25 25.(1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say (a)an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order; (b)an order that either party to the marriage shall secure to the other to the satisfaction of the court such periodical payments, for such term, as may be so specified; (c)an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified; (d)an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified; (e)an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified; (f)an order that a party to the marriage shall pay to such person as may be so specified for the benefit of such a child, or to such a child, such lump sum as may be so specified; (2) The court may also, subject to those restrictions, make any one or more of the orders mentioned in paragraph (1)(d), (e) and (f) (a)in any proceedings for divorce, nullity of marriage or judicial separation, before granting a decree; and (b)where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal. (3) Without prejudice to the generality of paragraph (1)(c) or (f) (a)an order under this Article that a party to a marriage shall pay a lump sum to the other party may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this Article in his or her favour; (b)an order under this Article for the payment of a lump sum to or for the benefit of a child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this Article in his favour to be met; and (c)an order under this Article for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court. (4) The power of the court under paragraph (1) or (2)(a) to make an order in favour of a child of the family shall be exercisable from time to time; and where the court makes an order in favour of a child under paragraph (2)(b), it may from time to time, subject to the restrictions mentioned in paragraph (1), make a further order in his favour of any of the kinds mentioned in paragraph (1)(d), (e) or (f). (5) Without prejudice to the power to give a direction under Article 32 for the settlement of an instrument by conveyancing counsel, where an order is made under paragraph (1)(a), (b) or (c) on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute. (6) Where the court makes an order under any provision of paragraph (1), (2) or (4) it may give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the disposal of any property). MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 26 26.(1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say (a)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 specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion; (b)an order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, 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; (c)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; (d)an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement; (2) The court may make an order under paragraph (1)(c) notwithstanding that there are no children of the family. (3) Without prejudice to the power to give a direction under Article 32 for the settlement of an instrument by conveyancing counsel, where an order is made under this Article on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute. (4) Where the court makes an order under any provision of paragraph (1) it may 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). MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 27 27.(1) It shall be the duty of the court in deciding whether to exercise its powers under Article 25(1)(a), (b) or (c) or 26 in relation to a party to the marriage and, if so, in what manner, to have regard to all the circumstances of the case including the following matters, that is to say (a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; (b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c)the standard of living enjoyed by the family before the breakdown of the marriage; (d)the age of each party to the marriage and the duration of the marriage; (e)any physical or mental disability of either of the parties to the marriage; (f)the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; (g)in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring; (2) Without prejudice to paragraph (3), it shall be the duty of the court in deciding whether to exercise its powers under Article 25(1)(d), (e) or (f), (2) or (4) or 26 in relation to a child of the family and, if so, in what manner, to have regard to all the circumstances of the case including the following matters, that is to say (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 breakdown of the marriage; (e)the manner in which he was being and in which the parties to the marriage expected him to be educated or trained; (3) It shall be the duty of the court in deciding whether to exercise its powers under Article 25(1)(d), (e) or (f), (2) or (4) or 26 against a party to a marriage in favour of a child of the family who is not the child of that party and, if so, in what manner, to have regard (among the circumstances of the case) (a)to whether that party had assumed any responsibility for the child's maintenance and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility; (b)to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own; (c)to the liability of any other person to maintain the child. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 28 28.(1) Where a petition for divorce, nullity of marriage or judicial separation has been presented, then, subject to paragraph (2), proceedings for maintenance pending suit under Article 24, for a financial provision order under Article 25, or for a property adjustment order may be begun, subject to and in accordance with rules of court, at any time after the presentation of the petition. (2) Rules of court may provide, in such cases as may be prescribed by the rules, (a)that applications for any such relief as is mentioned in paragraph (1) shall be made in the petition or answer; and (b)that applications for any such relief which are not so made, or are not made until after the expiration of such period following the presentation of the petition or filing of the answer as may be so prescribed, shall be made only with the leave of the court. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 29 29.(1) Either party to a marriage may apply to the court for an order under this Article on the ground that the other party to the marriage ("the respondent") (a)has failed to provide reasonable maintenance for the applicant, or (b)has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family. (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, (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 orders, if any, to make under this Article in favour of the child, (4) In relation to an application under this Article on the ground mentioned in paragraph (1)(a), Article 27(1)(c) shall have effect as if for the reference therein to the breakdown of the marriage there were substituted a reference to the failure to provide reasonable maintenance for the applicant, and, in relation to an application under this Article on the ground mentioned in paragraph (1)(b), Article 27(2)(d) shall have effect as if for the reference therein to the breakdown of the marriage there were substituted a reference to the failure to provide, or to make a proper contribution towards, reasonable maintenance for the child of the family to whom the application relates. (5) Where on an application under this Article it appears to the court that the applicant or any child of the family to whom the application relates is in immediate need of financial assistance, but it is not yet possible to determine what order, if any, should be made on the application, the court may make an interim order for maintenance, that is to say, an order requiring the respondent to make to the applicant until the determination of the application such periodical payments as the court thinks reasonable. (6) Where on an application under this Article the applicant satisfies the court of any ground mentioned in paragraph (1), the court may make any one or more of the following orders, that is to say (a)an order that the respondent shall make to the applicant such periodical payments, for such term, as may be specified in the order; (b)an order that the respondent shall secure to the applicant, to the satisfaction of the court, such periodical payments, for such term, as may be so specified; (c)an order that the respondent shall pay to the applicant such lump sum as may be so specified; (d)an order that the respondent shall make to such person as may be specified in the order for the benefit of the child to whom the application relates, or to that child, such periodical payments, for such term, as may be so specified; (e)an order that the respondent shall secure to such person as may be so specified for the benefit of that child, or to that child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified; (f)an order that the respondent shall pay to such person as may be so specified for the benefit of that child, or to that child, such lump sum as may be so specified; (7) An application for the variation under Article 33 of a periodical payments order or secured periodical payments order made under this Article in favour of a child may, if the child has attained the age of 16, be made by the child himself. (8) Where a periodical payments order made under this Article in favour of a child ceases to have effect on the date on which the child attains the age of 16, or at any time after that date but before or on the date on which he attains the age of 18, then, if at any time before he attains the age of 21 an application is made by the child for an order under this paragraph, the court shall have power by order to revive the first-mentioned order from such date as the court may specify, not being earlier than the date of the making of the application, and to exercise its powers under Article 33 in relation to any order so revived. (9) Without prejudice to the generality of paragraph (6)(c) or (f), an order under this Article for the payment of a lump sum (a)may be made for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the applicant or any child of the family to whom the application relates before the making of the application to be met; (b)may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 30 30.(1) 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, subject to the following limits, that is to say (a)in the case of a periodical payments order, the term shall begin not earlier than the date of the making of an application for the order, and shall be so defined as not to extend beyond the death of either of the parties to the marriage or, where the order is made on or after the grant of a decree of divorce or nullity of marriage, the remarriage of the party in whose favour the order is made; and (b)in the case of a secured periodical payments order, the term shall begin not earlier than the date of the making of an application for the order, and shall be so defined as not to extend beyond the death or, where the order is made on or after the grant of such a decree, the remarriage of the party in whose favour the order is made. (2) Where a periodical payments or secured payments order in favour of a party to a marriage is made otherwise than on or after the grant of a decree of divorce or nullity of marriage, and the marriage in question is subsequently dissolved or annulled but the order continues in force, the order shall, notwithstanding anything in it, cease to have effect on the remarriage of that party, except in relation to any arrears due under it on the date of the remarriage. (3) If after the grant of a decree dissolving or annulling a marriage either party to that marriage remarries, that party shall not be entitled to apply, by reference to the grant of that decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 31 31.(1) Subject to paragraph (3), no financial provision order and no order for a transfer of property under Article 26(1)(a) shall be made in favour of a child who has attained the age of 18. (2) The term to be specified in a periodical payments or secured periodical payments order in favour of a child may begin with the date of the making of an application for the order in question or any later date but (a)shall not in the first instance extend beyond the date of the birthday of the child next following his attaining the upper limit of the compulsory school age (that is to say, the age that is for the time being that limit by virtue of Article 36 of the Education and Libraries (Northern Ireland) Order 1972) unless the court thinks it right in the circumstances of the case to specify a later date; and (b)shall not in any event, subject to paragraph (3), extend beyond the date of the child's eighteenth birthday. (3) Paragraph (1), and sub-paragraph (b) of paragraph (2), shall not apply in the case of a child, if it appears to the court that (a)the child is, or will be, or if an order were made without complying with either or both of those provisions would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or (b)there are special circumstances which justify the making of an order without complying with either or both of those provisions. (4) Any periodical payments order in favour of a child shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the order on the date of the death. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 32 32. Where the court decides to make a financial provision order requiring any payments to be secured or a property adjustment order, or where it gives directions for the disposal of any property, (a)it may direct that the matter be referred to a conveyancing counsel appointed by the court for him to settle a proper instrument to be executed by all necessary parties; and (b)where the order is to be made in proceedings for divorce, nullity of marriage or judicial separation it may, if it thinks fit, defer the grant of the decree in question until the instrument has been duly executed. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 33 33.(1) Where the court has made an order to which this Article applies, then, subject to the provisions of this Article, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended. (2) This Article applies to the following orders, that is to say (a)any order for maintenance pending suit and any interim order for maintenance; (b)any periodical payments order; (c)any secured periodical payments order; (d)any order made by virtue of Article 25(3)(c) or 29(9)(b) (provision for payment of a lump sum by instalments); (e)any order for a settlement of property under Article 26(1)(b) or for a variation of settlement under Article 26(1)(c) or (d), being an order made on or after the grant of a decree of judicial separation. (3) The powers exercisable by the court under this Article in relation to an order shall be exercisable also in relation to any instrument executed in pursuance of the order. (4) The court shall not exercise the powers conferred by this Article in relation to an order for a settlement under Article 26(1)(b) or for a variation of settlement under Article 26(1)(c) or (d) except on an application made in proceedings (a)for the rescission of the decree of judicial separation by reference to which the order was made, or (b)for the dissolution of the marriage in question. (5) No property adjustment order shall be made on an application for the variation of a periodical payments or secured periodical payments order made (whether in favour of a party to a marriage or in favour of a child of the family) under Article 25, and no order for the payment of a lump sum shall be made on an application for the variation of a periodical payments or secured periodical payments order in favour of a party to a marriage (whether made under Article 25 or under Article 29). (6) Where the person liable to make payments under a secured periodical payments order has died, an application under this Article relating to that order may be made by the person entitled to payments under the order or by the personal representatives of the deceased person, but no such application shall, except with the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of that person is first taken out. (7) In exercising the powers conferred by this Article the court shall have regard to all the circumstances of the case, including 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, where the party against whom that order was made has died, the changed circumstances resulting from his or her death. (8) The personal representatives of a deceased person against whom a secured periodical payments order was made shall not be liable for having distributed any part of the estate of the deceased after the expiration of the period of six months referred to in paragraph (6) on the ground that they ought to have taken into account the possibility that the court might permit an application under this Article to be made after that period by the person entitled to payments under the order; but this paragraph shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this Article. (9) In considering for the purposes of paragraph (6) the question when representation was first taken out, a grant limited to part of the estate of the deceased shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 34 34.(1) A person shall not be entitled to enforce through the court the payment of any arrears due under an order for maintenance pending suit, an interim order for maintenance or any financial provision order without the leave of the court if those arrears became due more than 12 months before proceedings to enforce the payment of them are begun. (2) The court, on an application for the grant of leave under this Article, may refuse leave, or may 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 the court thinks proper, or may remit the payment of the arrears or of any part thereof. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 35 35.(1) Where on an application made under this Article in relation to an order to which this Article applies it appears to the court that by reason of (a)a change in the circumstances of the person entitled to, or liable to make, payments under the order since the order was made, or (b)the changed circumstances resulting from the death of the person so liable, (2) This Article applies to the following orders, that is to say (a)any order for maintenance pending suit and any interim order for maintenance; (b)any periodical payments order; and (c)any secured periodical payments order. (3) An application under this Article may be made by the person liable to make payments under an order to which this Article applies or his or her personal representatives and may be made against the person entitled to payments under the order or her or his personal representatives. (4) An application under this Article may be made in proceedings in the High Court for (a)the variation or discharge of the order to which this Article applies, or (b)leave to enforce, or the enforcement of, the payment of arrears under that order; (5) The jurisdiction conferred on a county court by this Article shall be exercisable notwithstanding that by reason of the amount claimed in the application the jurisdiction would not but for this paragraph be exercisable by a county court. (6) An order under this Article 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. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 36 36.(1) If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements, then (a)that provision shall be void; but (b)any other financial arrangements contained in the agreement shall not thereby be rendered void or unenforceable and shall, unless they are void or unenforceable for any other reason (and subject to Articles 37 and 38), be binding on the parties to the agreement. (2) In this Article and in Article 37 "maintenance agreement" means any agreement in writing made, whether before or after the commencement of this Article, between the parties to a marriage, being (a)an agreement containing financial arrangements, whether made during the continuance or after the dissolution or annulment of the marriage; or (b)a separation agreement which contains no financial arrangements in a case where no other agreements in writing between the same parties contains such arrangements; "financial arrangements" means provisions governing the rights and liabilities towards one another when living separately of the parties to a marriage (including a marriage which has been dissolved or annulled) in respect of the making or securing of payments or the disposition or use of any property, including such rights and liabilities with respect to the maintenance or education of any child, whether or not a child of the family. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 37 37.(1) Where a maintenance agreement is for the time being subsisting and each of the parties to the agreement is for the time being either domiciled or resident in Northern Ireland, then, subject to paragraph (3), either party may apply to the court or to a court of summary jurisdiction for an order under this Article. (2) If the court to which the application is made is satisfied either (a)that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made or, as the case may be, financial arrangements were omitted from it (including a change foreseen by the parties when making the agreement), the agreement should be altered so as to make different, or, as the case may be, 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, (i)by varying or revoking any financial arrangements contained in it, or (ii)by inserting in it financial arrangements for the benefit of one of the parties to the agreement or of a child of the family, (3) A court of summary jurisdiction shall not entertain an application under paragraph (1) unless both the parties to the agreement are resident in Northern Ireland and at least one of the parties is resident in the petty sessions district for which the court acts, and shall not have power to make any order on such an application except (a)in a case where 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 the other party or for the maintenance of any child of the family; (b)in a case where 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. (4) Where a court decides to alter, by order under this Article, an agreement 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 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, 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 agreement as altered by the order shall be such term as the court may specify, subject to the following limits, that is to say (a)where the payments will not be secured, the term shall be so defined as not to extend beyond the death of either of the parties to the agreement or the remarriage of the party to whom the payments are to be made; (b)where the payments will be secured, the term shall be so defined as not to extend beyond the death or remarriage of that party. (5) Where a court decides to alter, by order under this Article, an agreement by 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 by 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, then, in deciding the term for which under the agreement as altered by the order the payments or, as the case may be, the additional payments attributable to the increase are to be made or secured for the benefit of the child, the court shall apply the provisions of Article 31(2) and (3) as to age limits as if the order in question were a periodical payments or secured periodical payments order in favour of the child. (6) For the avoidance of doubt it is hereby declared that nothing in this Article or in Article 36 affects any power of a court before which any proceedings between the parties to a maintenance agreement are brought under any other statutory provision (including a provision of this Order) to make an order containing financial arrangements or any right of either party to apply for such an order in such proceedings. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 38 38.(1) Where a maintenance agreement within the meaning of Article 36 provides for the continuation of payments under the agreement after the death of one of the parties and that party dies domiciled in Northern Ireland, the surviving party or the personal representatives of the deceased party may, subject to paragraphs (2) and (3), apply to the High Court or a county court for an order under Article 37 and, accordingly, for the purposes of this Article, any reference in Article 37 to the court includes a reference to a county court (whether a divorce county court or not). (2) An application under this Article shall not, except with the permission of the High Court or a county court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out. (3) A county court shall have jurisdiction by virtue of this Article only where it is shown to the satisfaction of the court that, at the date of the death of the deceased, the property included in his net estate (that is to say, all property of which he had power to dispose by his will, otherwise than by virtue of a special power of appointment, less the amount of his funeral, testamentary and administration expenses, debts and liabilities, including any capital transfer tax payable out of his estate on his death) did not exceed [#15,000] in value. (4) If a maintenance agreement is altered by a court on an application made in pursuance of paragraph (1), the like consequences shall ensue as if the alteration had been made immediately before the death by agreement between the parties and for valuable consideration. (5) The provisions of this Article shall not render the personal representatives of the deceased liable for having distributed any part of the estate of the deceased after the expiration of the period of six months referred to in paragraph (2) on the ground that they ought to have taken into account the possibility that a court might permit an application by virtue of this Article to be made by the surviving party after that period; but this paragraph shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this Article. (6) Article 33(9) shall apply for the purposes of paragraph (2) as it applies for the purposes of paragraph (6) of Article 33. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 39 39.(1) For the purposes of this Article "financial relief" means relief under any of the provisions of Articles 24, 25, 26, 29, 33 (except paragraph (6)) and 37, and any reference in this Article to defeating a person's claim for financial relief is a reference to preventing financial relief from being granted to that person, or to that person for the benefit of a child of the family, or reducing the amount of any financial relief which might be so granted, or frustrating or impeding the enforcement of any order which might be or has been made at his instance under any of those provisions. (2) Where proceedings for financial relief are brought by one person against another, the court may, on the application of the first-mentioned person (a)if it is satisfied that the other party to the proceedings 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; (c)if it is satisfied, in a case where an order has been obtained under any of the provisions mentioned in paragraph (1) by the applicant against the other party, that the other party has, with that intention, made a reviewable disposition, make an order setting aside the disposition; (3) An order made by the court under paragraph (2)(a), to the extent that it restrains the other party to the proceedings for financial relief from making a disposition of any land in Northern Ireland which is specified in the order, (a)shall create on the land a statutory charge within the meaning of section 87 of the Land Registration Act (Northern Ireland) 1970 (matters registrable in the Statutory Charges Register); and (b)subject to section 88 of that Act (statutory charge to be void against purchaser in certain circumstances), shall render liable to be set aside by the court, at the instance of the applicant for financial relief, any disposition of the land in contravention of the order. (4) Neither paragraph (3)(b) nor section 88(1) of the said Act of 1970 shall prejudice any power of the court to set aside a disposition under paragraph (2)(b) or (c). (5) Without prejudice to any provision of section 91 of the said Act of 1970 (cancellation and modification of statutory charges), the registration of a statutory charge such as is mentioned in paragraph (3)(a) [shall be effective until (a)the expiration of the period of one year from the date of its registration or of the last renewal of its registration, unless the registration is renewed or further renewed before the expiration of that period; or (b)the court orders that it is to cease to have effect; (6) An application for the renewal, under paragraph (5)(a), of the registration of a charge may be made in the same manner as the application for the original registration. (7) Where the court makes an order under paragraph (2)(b) or (c) or (3)(b) 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). (8) Any disposition made by the other party to the proceedings for financial relief in question (whether before or after the commencement of those proceedings) is a reviewable disposition for the purposes of paragraph (2)(b) and (c) 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. (9) Where an application is made under this Article 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 (2)(c), that the disposition has had the consequence, (10) 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. (11) This Article does not apply to a disposition made more than three years before the commencement of this Article. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 40 40.(1) Where (a)a periodical payments or secured periodical payments order in favour of a party to a marriage (hereafter in this section referred to as "a payments order") has ceased to have effect by reason of the remarriage of that party, and (b)the person liable to make payments under the order or his or her personal representatives made payments in accordance with it in respect of a period after the date of the remarriage in the mistaken belief that the order was still subsisting, (2) On an application under this Article the court may order the respondent to pay to the applicant a sum equal to the amount of the payments made in respect of the period mentioned in paragraph (1)(b) or, if it appears to the court that it would be unjust to make that order, it may either order the respondent to pay to the applicant such lesser sum as it thinks fit or dismiss the application. (3) An application under this Article may be made in proceedings in the High Court for leave to enforce, or the enforcement of, payment of arrears under the order in question, but when not made in such proceedings shall be made to a county court; and accordingly references in this Article to the court are, as the circumstances require, references to the High Court or a county court (whether a divorce county court or not). (4) The jurisdiction conferred on a county court by this Article shall be exercisable notwithstanding that by reason of the amount claimed in the application the jurisdiction would not but for this paragraph be exercisable by a county court. (5) An order under this Article 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) The collecting officer of a court of summary jurisdiction to whom any payments under a payments order, or under an attachment of earnings order made to secure payments under a payments order, are required to be made shall not be liable (a)for any act done by him in pursuance of the payments order after the date on which the order ceased to have effect by reason of the remarriage of the person entitled to payments under it; or (b)for any act done by him after that date in accordance with any statutory provision specifying how payments made to him in compliance with the attachment of earnings order are to be dealt with, (7) In this Article "collecting officer" means the officer mentioned in section 95(2) of the Magistrates' Courts Act (Northern Ireland) 1964 or section 15(2) of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 41 41. The fact that a settlement or transfer of property had to be made in order to comply with a property adjustment order shall not prevent that settlement or transfer from being a settlement of property to which section 12(1) of the Bankruptcy Amendment Act (Northern Ireland) 1929 (avoidance of certain settlements) applies. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 42 42. Where the court makes an order under this Part requiring payments (including a lump sum payment) to be made, or property to be transferred, to a party to a marriage and the court is satisfied that the person in whose favour the order is made is incapable, by reason of mental disorder within the meaning of the Mental Health Act (Northern Ireland) 1961, of managing and administering his or her property and affairs then, subject to any order, direction or authority made or given in relation to that person under the Lunacy Regulation (Ireland) Act 1871, 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. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 43 43.(1) Rules of court shall make provision for ensuring that where (a)a petition for divorce, nullity of marriage or judicial separation has been presented to the court, and (b)there are children of the family to whom Article 44 (restrictions on decrees affecting children) applies, (i)to consider the possibility of conciliating the parties to the marriage, and (ii)for a report (by that person or any other suitably qualified person) on the children and the suitability of any arrangements which have been made, or are proposed by either party to be made, for their welfare. (2) Where a person having custody of a child refuses to allow a person acting under paragraph (1) to have access to the child for the purpose of making a report under sub-paragraph (ii) of that paragraph, the court may order the first-mentioned person to permit such access; and for the purposes of this paragraph a person has custody of a child if he has actual possession of his person whether or not that possession is shared with one or more other persons. (3) Where (a)in a report under paragraph (1)(ii) the opinion is expressed that the arrangements in question are unsuitable, or (b)for any other reason the court sees fit to exercise its powers under this paragraph, MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 44 44.(1) The court shall not make absolute a decree of divorce or of nullity of marriage, or grant a decree of judicial separation, unless the court, by order, has declared that it is satisfied (a)that for the purposes of this Article there are no children of the family to whom this Article applies; or (b)that the only children who are or may be children of the family to whom this Article applies are the children named in the order and that (i)arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or (ii)it is impracticable for the party or parties appearing before the court to make any such arrangements; or (c)that there are circumstances making it desirable that the decree should be made absolute or should be granted, as the case may be, without delay notwithstanding that there are or may be children of the family to whom this Article applies and that the court is unable to make a declaration in accordance with sub-paragraph (b). (2) The court shall not make an order declaring that it is satisfied as mentioned in paragraph (1)(c) unless it has obtained a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children named in the order before the court within a specified time. (3) If the court makes absolute a decree of divorce or of nullity of marriage, or grants a decree of judicial separation, without having made an order under paragraph (1), the decree shall be voidable at the instance of the respondent, of any child of the family to whom this Article applies (acting if needs be by his next friend) or of the court; but, if such an order was made, no person shall be entitled to challenge the validity of the decree on the ground that the conditions prescribed by paragraphs (1) and (2) were not fulfilled. (4) If the court refuses to make an order under paragraph (1) in any proceedings for divorce, nullity of marriage or judicial separation, it shall, on an application by either party to the proceedings, make an order declaring that it is not satisfied as mentioned in that paragraph. (5) This Article applies to the following children of the family, that is to say (a)any minor child of the family who at the date of the order under paragraph (1) is (i)under the age of 16, or (ii)receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also in gainful employment; and (b)any other child of the family to whom the court by an order under that paragraph directs that this Article shall apply; (6) In this Article "welfare", in relation to a child, includes the custody and education of the child and financial provision for him. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 45 45.(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18 (a)in any proceedings for divorce, nullity of marriage or judicial separation, before or on granting a decree or at any time thereafter (whether, in the case of a decree of divorce or nullity of marriage, before or after the decree is made absolute); (b)where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal; (2) Where the court makes an order under Article 29, the court shall also have power to make such order as it thinks fit with respect to the custody of any child of the family who is for the time being under the age of 18; but the power conferred by this paragraph and any order made in exercise of that power shall have effect only as respects any period when an order is in force under that Article and the child is under that age. (3) Where the court grants or makes absolute a decree of divorce or grants a decree of judicial separation, it may include in the decree a declaration that either party to the marriage in question is unfit to have the custody of the children of the family. (4) Where a decree of divorce or of judicial separation contains such a declaration as is mentioned in paragraph (3), then, if the party to whom the declaration relates is a parent of any child of the family, that party shall not, on the death of the other parent, be entitled as of right to the custody or the guardianship of that child. (5) Where an order in respect of a child is made under this Article, the order shall not affect the rights over or with respect to the child of any person, other than a party to the marriage in question, unless the child is the child of one or both of the parties to that marriage and that person was a party to the proceedings on the application for an order under this Article. (6) The power of the court under paragraph (1)(a) or (2) to make an order with respect to a child shall be exercisable from time to time; and where the court makes an order under paragraph (1)(b) with respect to a child it may from time to time until that child attains the age of 18 make a further order with respect to his custody and education. (7) The court shall have power to vary or discharge an order made under this Article or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 46 46.(1) Where the court has jurisdiction by virtue of this Part to make an order for the custody of a child and it appears to the court that there are exceptional circumstances making it impracticable or undesirable for the child to be entrusted to either of the parties to the marriage or to any other individual, the court may, if it thinks fit, make an order committing the care of the child to the Department of Health and Social Services ("the Department"); and thereupon Part VII of the Children and Young Persons Act (Northern Ireland) 1968 (which relates to the treatment of children in the care of the Department) [and section 154(2) of that Act (contributions by person in care who has attained the age of 16 and is in remunerative work)] shall, subject to the provisions of this Article, apply as if the child had been received by the Department into its care under section 103 of that Act. (2) The court shall before making an order under this Article hear any representations from the Department, including any representations as to the making of a financial provision order in favour of the child. (3) While an order made by virtue of this Article is in force with respect to a child, the child shall continue in the care of the Department, notwithstanding any claim by a parent or other person. (4) An order made by virtue of this Article shall cease to have effect as respects any child when he becomes 18, and the court shall not make an order committing a child to the care of the Department under this Article after he has become 17. (5) In the application of Part VII of the Children and Young Persons Act (Northern Ireland) 1968 by virtue of this Article (a)the exercise by the Department of its powers under sections 113 to 115 of that Act (which among other things relate to the accommodation and welfare of a child in the care of the Department), shall be subject to any directions given by the court; and (b)section 118 of that Act (which relates to arrangements for the emigration of such a child) shall not apply. (6) It shall be the duty of any parent or guardian of a child committed to the care of the Department under this Article to secure that the Department is informed of his address for the time being, and a person who knowingly fails to comply with this paragraph shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding [#50]. (7) The court shall have power from time to time by an order under this Article to vary or discharge any provision made in pursuance of this Article. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 47 47.(1) Where the court has jurisdiction by virtue of this Part to make an order for the custody of a child and it appears to the court that there are exceptional circumstances making it desirable that the child should be under the supervision of an independent person, the court may, as respects any period during which the child is, in exercise of that jurisdiction, committed to the custody of any person, order that the child be under the supervision of a probation officer or under the supervision of the Department of Health and Social Services. (2) Where the court makes an order under this Article for supervision by a probation officer, the officer responsible for carrying out the order shall be such probation officer as may be selected under arrangements made by the Secretary of State. (3) Where the court makes an order under this Article for supervision by the Department of Health and Social Services, Article 17 of the Health and Personal Social Services (Northern Ireland) Order 1972 (exercise of functions by Health and Social Services Boards on behalf of the Department) shall apply as if paragraph (1)(a) of that Article included a reference to functions imposed under this Article. (4) The court shall not have power to make an order under this Article as respects a child who in pursuance of an order under Article 46 is in the care of the Department. (5) Where a child is under the supervision of any person in pursuance of this Article the jurisdiction possessed by the court to vary any financial provision order in the child's favour or any order made with respect to his custody or education under this Part shall, subject to any rules of court, be exercisable at the instance of the court itself. (6) The court shall have power from time to time by an order under this Article to vary or discharge any provision made in pursuance of this Article. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 48 48.(1) Subject to the following provisions of this Article, any reference in this Order to "the court" (except where the context shows that it is a reference to some particular court) is a reference to (a)the High Court; or (b)where an order made by the Lord Chancellor is in force designating a county court sitting for any division as a divorce county court, a county court sitting for that division; (2) Except to the extent that rules of court otherwise provide, the jurisdiction conferred by virtue of this Article on a divorce county court shall be exercisable throughout Northern Ireland (and, accordingly, section 42(2) of the Interpretation Act (Northern Ireland) 1954 (identification of court by which jurisdiction is exercisable) shall not apply); but rules of court may provide for a matrimonial cause pending in one such court to be heard and determined in another, or partly in that and partly in another. (3) If an order is made under paragraph (1), rules of court (a)shall provide for the transfer to the High Court (i)of any matrimonial cause pending in a divorce county court which ceases to be undefended, and (ii)of any matrimonial cause so pending, where the transfer appears to the divorce county court to be desirable; (b)may provide for the transfer to the High Court of any matrimonial cause which remains undefended; (c)may provide for the transfer or retransfer from the High Court to a divorce county court of any matrimonial cause which is, or again becomes, undefended; (d)shall define the circumstances in which any matrimonial cause is to be treated for the purposes of this paragraph as undefended. (4) The jurisdiction of a divorce county court to exercise any power under Part III or IV (except a power under Article 29 or 37 or a power under Article 35, 38 or 40 which is exercisable by county courts generally) shall, except to the extent that rules of court otherwise permit and, in particular, without prejudice to paragraphs (5) and (7), be exercisable only in connection with a petition, decree or order pending in or made by such a court. (5) If an order is made under paragraph (1), rules of court may provide for the transfer or retransfer from a divorce county court to the High Court, or from the High Court to a divorce county court, of any proceedings for the exercise of a power under Part III or IV (except proceedings on an application under Article 35, 38 or 40). (6) The power conferred by paragraphs (3) and (5) includes power to provide for the removal of proceedings at the direction of the High Court; but nothing in this Article affects any other power of the High Court to remove proceedings to that court from a county court or any power to remit proceedings from that court to a county court. (7) A court shall have jurisdiction to entertain any proceedings transferred to the court by virtue of rules made in pursuance of paragraph (5). (8) Any jurisdiction conferred on a divorce county court by virtue of this Order shall be exercisable notwithstanding that by reason of any amount claimed the jurisdiction would not but for this paragraph be exercisable by a county court. (9) Without prejudice to [Article 61 of the County Courts (Northern Ireland) Order 1980] (cases stated), rules of court shall make provision for an appeal to the Court of Appeal from any decree or order made by [a judge of] a divorce county court in the exercise of the jurisdiction conferred by any provision of this Order (other than Article 34, 35, 38 or 40), or from the dismissal [by such a judge] of any petition or application under such a provision (other than as aforesaid), upon a point of law, a question of fact or the admission or rejection of any evidence. (10) A person dissatisfied with an order made by any county court in the exercise of the jurisdiction conferred by Article 35, 38 or 40 or with the dismissal of any application instituted by him under that Article shall be entitled to appeal from the order or dismissal as if the order 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 (cases stated by county court judge) and 62 (cases stated by High Court on appeal from county court) of that Order shall apply accordingly]. (11) In this Article "matrimonial cause" means any action for divorce, nullity of marriage or judicial separation or any application under Article 5(2) to allow the presentation of a petition for divorce within the period specified in that Article. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 49 49.(1) Paragraphs (2) to (6) shall have effect with respect to (a)the jurisdiction of the court to entertain (i)proceedings for divorce, judicial separation or nullity of marriage; and (ii)proceedings for financial provision under Article 29; and (b)the jurisdiction of the High Court to entertain proceedings for death to be presumed and a marriage to be dissolved in pursuance of Article 21. (2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage (a)is domiciled in Northern Ireland on the date when the proceedings are begun; or (b)was habitually resident in Northern Ireland throughout the period of one year ending with that date. (3) The court shall have jurisdiction to entertain proceedings for nullity of marriage if (and only if) either of the parties to the marriage (a)is domiciled in Northern Ireland on the date when the proceedings are begun; or (b)was 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. (4) The High Court shall have jurisdiction to entertain proceedings for death to be presumed and a marriage to be dissolved if (and only if) the petitioner (a)is domiciled in Northern Ireland on the date when the proceedings are begun; or (b)was habitually resident in Northern Ireland throughout the period of one year ending with that date. (5) The court shall have jurisdiction to entertain an application for financial provision under Article 29 if (and only if) (a)the applicant or the respondent is domiciled in Northern Ireland on the date of the application; or (b)the applicant has been habitually resident there throughout the period of one year ending with that date; or (c)the respondent is resident there on that date. (6) The court shall, at any time when proceedings are pending in respect of which it has jurisdiction by virtue of paragraph (2) or (3) (or of this paragraph), also have jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce, judicial separation or nullity of marriage, notwithstanding that jurisdiction would not be exercisable under paragraph (2) or (3). (7) Schedule 1 shall have effect as to the cases in which matrimonial proceedings in Northern Ireland are to be, or may be, stayed by the court where there are concurrent proceedings elsewhere in respect of the same marriage, and as to the other matters dealt with in that Schedule; but nothing in the Schedule prejudices any power to stay proceedings which is exercisable by the court apart from the Schedule. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 50 50.(1) A court shall not be precluded from granting matrimonial relief by reason only that the marriage in question was entered into under a law which permits polygamy. (2) In this Article "matrimonial relief" means (a)any decree under Part II; (b)a financial provision order under Article 29; (c)an order under Article 37 altering a maintenance agreement; (d)an order under any provision of this Order which confers a power exercisable in connection with, or in connection with proceedings for, any such decree or order as is mentioned in sub-paragraphs (a) to (c); [(e)an order under the Domestic Proceedings (Northern Ireland) Order 1980]. (3) This Article has effect whether or not either party to the marriage in question has for the time being any spouse additional to the other party; and 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 such other spouse; and (b)for conferring on any such other spouse the right to be heard in any such proceedings, MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 51 51.(1) Without prejudice to any provision of this Order which empowers or requires the court to dismiss a petition for divorce or judicial separation or to dismiss an application for a decree nisi of divorce to be made absolute, nothing in any statutory provision relating to the general jurisdiction of the court or in any rule of law shall be taken as empowering or requiring the court to dismiss such a petition or application on the ground of collusion between the parties in connection with the presentation or prosecution of the petition or the obtaining of the decree nisi or on the ground of any conduct on the part of the petitioner. (2) Collusion shall not be a bar to the granting of a decree of nullity. (3) It is hereby declared that neither collusion nor any other conduct on the part of the petitioner which has at any time been a bar to relief in matrimonial proceedings constitutes a bar to the grant of a decree under Article 21. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 52 52.(1) The evidence of a husband or wife shall be admissible in any proceedings to prove that marital intercourse did or did not take place between them during any period. (2) In any proceedings for nullity of marriage, evidence on the question of sexual capacity shall be heard in camera unless in any case the judge is satisfied that in the interests of justice any such evidence ought to be heard in open court. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 53 53.(1) Where in a petition for divorce or judicial separation, or in any other pleading praying for either form of relief, one party to a marriage alleges that the other has committed adultery, he or she shall make the person alleged to have committed adultery with the other party to the marriage a party to the proceedings unless excused by the court on special grounds from doing so. (2) Rules of court may, either generally or in such cases as may be prescribed by the rules, exclude the application of paragraph (1) where the person alleged to have committed adultery with the other party to the marriage is not named in the petition or other pleading. (3) Where in pursuance of paragraph (1) a person is made a party to proceedings for divorce or judicial separation, the court may, if after the close of the evidence on the part of the person making the allegtion of adultery it is of opinion that there is not sufficient evidence against the person so made a party, dismiss him or her from the suit. (4) Rules of court may make provision, in cases not falling within paragraph (1), with respect to the joinder as parties to proceedings under this Order of persons involved in allegations of adultery or other improper conduct made in those proceedings, and with respect to the dismissal from such proceedings of any parties so joined. (5) In every case in which adultery with any party to a suit is alleged against any person not made a party to the suit or in which the court considers, in the interest of any person not already a party to the suit, that that person should be made a party to the suit, the court may if it thinks fit allow that person to intervene upon such terms, if any, as the court thinks just. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 54 54.(1) There shall be a committee known as the Northern Ireland Matrimonial Causes Rules Committee ("the Committee") which may, with the concurrence of the Lord Chancellor, make rules of court for the purposes of (a)this Order, except (i)Articles 35, 38 and 40 (jurisdiction exercisable by any county court, whether or not it is a divorce county court); (ii)Article 37 so far as it applies to a court of summary jurisdiction; <(iii)Article 50 so far as it applies to matrimonial relief in the form of an order made by a court of summary jurisdiction under Article 37 or under [the Domestic Proceedings (Northern Ireland) Order 1980] and <(iv)Articles 55 and 56 and Schedule 4; and (b)any statutory provision passed or made after this Order which relates to any matter dealt with in this Order (except as aforesaid) [or the said Article 6 and Schedule 2]. (2) Schedule 2 shall have effect with respect to the Committee. (3) Without prejudice to the generality of paragraph (1), rules of court made under this Article (a)may, for the purposes mentioned in paragraph (1), make, in relation to both the High Court and divorce county courts, any provision of a kind which could be made by rules of court as defined by section 21(4) of the Interpretation Act (Northern Ireland) 1954 and, in relation to divorce county courts, any provision of a kind which could be made by county court rules (and accordingly in any statutory provision empowering the making of rules of court as so defined, any reference to the Supreme Court or the High Court shall, for the purposes of this Article, include a reference to a divorce county court); (b)without prejudice to sub-paragraph (a), may provide that a decree pronounced by an officer of a class designated by the rules shall have the same effect as a decree pronounced by a county court judge; (c)may apply, with or without modifications, any rules of court (as so defined) and any county court rules; (d)may modify or exclude the application of any such rules or of any provision of the County Courts [(Northern Ireland) Order 1980]; (e)without prejudice to sub-paragraph (a), may make with respect to proceedings in a divorce county court any provision regarding the Official Solicitor or any solicitor of the Supreme Court which could be made by rules of court with respect to proceedings in the High Court; (f)may provide for the enforcement of orders made in a divorce county court as if they were orders of the High Court, and for that purpose apply any statutory provision, with or without modification; (g)may provide that the sums payable under [Article 13(1) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981] to a solicitor or counsel acting in a matrimonial cause within the meaning of Article 48 which is treated for the purposes of that Article as undefended shall, at his election, be either (i)such fixed amount specified in the rules as may be applicable under the rules; or (ii)an amount ascertained on taxation or assessment of costs as provided by [Schedule 2 to that Order]; (g)and may provide for modifying that Schedule in relation to any proceedings which for the purposes of Article 48 are at any stage treated as pending in a divorce county court. (4) Rules of court made 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. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 55 55. In section 17 of the Married Women's Property Act 1882 (power of judge of High Court or county court to decide questions between husband and wife as to property) and in section 3 of the Law Reform (Husband and Wife) Act (Northern Ireland) 1964 (which extends that section), any reference to a husband or a wife shall include a reference to (a)either of the parties to a void marriage, whether or not it has been annulled; (b)either of the parties to a voidable marriage which has been annulled; and (c)either of the parties to a marriage which has been dissolved; Art.56 rep. with saving by 1980 NI 5 art.42(1)(2)(b) schs.2, 4 MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 57 57. After the commencement of this Article no person shall be entitled to petition the court for, or include in a petition a claim for, damages from any other person on the ground of adultery with the wife of the first-mentioned person. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 58 58. No person shall be liable in tort (a)to any other person on the ground only of his having induced the wife or husband of that other person to leave or remain apart from the other spouse; (b)to any other person for harbouring the wife of that other person, MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 59 59. After the commencement of this Article no person shall be entitled to petition the court for restitution of conjugal rights. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 60 60. Any rule of law or equity conferring on a wife authority, as agent of necessity of her husband, to pledge his credit or borrow money on his credit is hereby abrogated. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 61 61.(1) In consequence of the repeal by this Order of the proviso to section 8 of the Matrimonial Causes Act (Northern Ireland) 1939 (certain marriages between persons related by affinity to be void where a previous marriage was terminated by divorce, although they would have been valid had the previous marriage been terminated by death) it is hereby declared that a marriage contracted (whether in or out of Northern Ireland) after the commencement of that repeal between a man to whom this Article applies and a woman to whom it applies shall not by virtue of the relationship between them be void as a marriage between persons within the prohibited degrees of affinity. (2) This Article applies to a man and a woman who is the sister, aunt or niece of his divorced wife or who is the divorced wife of his brother, uncle or nephew; and in this paragraph words of kinship apply equally to kin of the whole and of the half blood. (3) The said repeal and this Article do not validate a marriage if either party to it is at the time of the marriage domiciled in a country outside Northern Ireland and under the law of that country there cannot be a valid marriage between the parties. MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978 - SECT 62 62. Schedule 3 shall have effect for the purpose of (a)the transition to the provisions of this Order from the law in force before the commencement of this Order; (b)the preservation for limited purposes of certain provisions superseded by provisions of this Order; and (c)the assimilation in certain respects to orders under this Order of orders made, or deemed to have been made, under the Matrimonial Causes Act (Northern Ireland) 1939 or the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1951. Art.63(a), with Schedules 3, 4, effects amendments; para.(b), with Schedules 3, 5, effects repeals 1. Paragraphs 2 to 6 have effect for the interpretation of this Schedule. 2. "Matrimonial proceedings" means any proceedings so far as they are one or more of the five following kinds, namely, proceedings for divorce, 3.(1) "Another jurisdiction" means any country other than Northern Ireland. (2) "Related jurisdiction" means any of the following countries, namely, England and Wales, Scotland, Jersey, Guernsey and the Isle of Man (the reference to Guernsey being treated as including Alderney and Sark). 4.(1) References to the trial or first trial in any proceedings do not include references to the separate trial of an issue as to jurisdiction only. (2) For the purposes of this Schedule, proceedings in the court are continuing if they are pending and not stayed. 5. Any reference in this Schedule to proceedings in another jurisdiction is to proceedings in a court of that jurisdiction, and to any other proceedings in that jurisdiction, which are of a description prescribed for the purposes of this paragraph; and provision may be made by rules of court as to when proceedings of any description in another jurisdiction are continuing for the purposes of this Schedule. 6. "Prescribed" means prescribed by rules of court. 7. While matrimonial proceedings are pending in the court in respect of a marriage and the trial or first trial in those proceedings has not begun, it shall be the duty of any person who is a petitioner in the proceedings, or is a respondent and has in his answer included a prayer for relief, to furnish, in such manner and to such persons and on such occasions as may be prescribed, such particulars as may be prescribed of any proceedings which (a)he knows to be continuing in another jurisdiction; and (b)are in respect of that marriage or capable of affecting its validity or subsistence. 8.(1) Where before the beginning of the trial or first trial in any proceedings for divorce which are continuing in the court it appears to the court on the application of a party to the marriage (a)that in respect of the same marriage proceedings for divorce or nullity of marriage are continuing in a related jurisdiction; and (b)that the parties to the marriage have resided together after its celebration; and (c)that the place where they resided together when the proceedings in the court were begun or, if they did not then reside together, where they last resided together before those proceedings were begun, is in that jurisdiction; and (d)that either of the said parties was habitually resident in that jurisdiction throughout the year ending with the date on which they last resided together before the date on which the proceedings in the court were begun, (2) References in sub-paragraph (1) to the proceedings in the court are, in the case of proceedings which are not only proceedings for divorce, to the proceedings so far as they are proceedings for divorce. 9.(1) Where before the beginning of the trial or first trial in any matrimonial proceedings which are continuing in the court it appears to the court (a)that any proceedings in respect of the marriage in question, or capable of affecting its validity or subsistence, are continuing in another jurisdiction; and (b)that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings in the court or in those proceedings so far as they consist of a particular kind of matrimonial proceedings, (2) In considering the balance of fairness and convenience for the purposes of sub-paragraph (1)(b), the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed. (3) In the case of any proceedings so far as they are proceedings for divorce, the court shall not exercise the power conferred on it by sub-paragraph (1) while an application under paragraph 8 in respect of the proceedings is pending. (4) If, at any time after the beginning of the trial or first trial in any matrimonial proceedings which are pending in the court, the court declares by order that it is satisfied that a person has failed to perform the duty imposed on him in respect of the proceedings by paragraph 7, sub-paragraph (1) shall have effect in relation to those proceedings, and to the other proceedings by reference to which the declaration is made, as if the words "before the beginning of the trial or first trial" were omitted; but no action shall lie in respect of the failure of a person to perform such a duty. 10.(1) Where an order staying any proceedings is in force in pursuance of paragraph 8 or 9, the court may, if it thinks fit, on the application of a party to the proceedings, discharge the order if it appears to the court that the other proceedings by reference to which the order was made are stayed or concluded, or that a party to those other proceedings has delayed unreasonably in prosecuting them. (2) If the court discharges an order staying any proceedings and made in pursuance of paragraph 8, the court shall not again stay those proceedings in pursuance of that paragraph. 11.(1) The provisions of sub-paragraphs (2) and (3) shall apply (subject to sub-paragraph (4)) where proceedings for divorce, judicial separation or nullity of marriage are stayed by reference to proceedings in a related jurisdiction for divorce, judicial separation or nullity of marriage; and in this paragraph "custody" includes access to the child in question; "education" includes training; "lump sum order" means such an order as is mentioned in paragraph (f) of Article 25(1) (lump sum payment for children), being an order made under Article 25(1) or (2)(a); "the other proceedings", in relation to any stayed proceedings, means the proceedings in another jurisdiction by reference to which the stay was imposed; "relevant order" means (a)an order under Article 24 (maintenance for spouse pending suit), (b)such an order as is mentioned in paragraph (d) or (e) of Article 25(1) (periodical payments for children) being an order made under Article 25(1) or (2)(a), (c)an order under Article 45(1)(a) (orders for the custody and education of children), and (d)except for the purposes of sub-paragraph (3), any order restraining a person from removing a child out of Northern Ireland or out of the custody, care or control of another person; and "stayed" means stayed in pursuance of this Schedule. (2) Where any proceedings are stayed, then, without prejudice to the effect of the stay apart from this paragraph (a)the court shall not have power to make a relevant order or a lump sum order in connection with the stayed proceedings except in pursuance of paragraph (c); and (b)subject to paragraph (c), any relevant order made in connection with the stayed proceedings shall, unless the stay is previously removed or the order previously discharged, cease to have effect on the expiration of the period of three months beginning with the date on which the stay was imposed; but (c)if the court considers that, for the purpose of dealing with circumstances needing to be dealt with urgently, it is necessary during or after that period to make a relevant order or a lump sum order in connection with the stayed proceedings or to extend or further extend the duration of a relevant order made in connection with the stayed proceedings, the court may do so and the order shall not cease to have effect by virtue of paragraph (b). (3) Where any proceedings are stayed and at the time when the stay is imposed an order is in force, or at a subsequent time an order comes into force, which was made in connection with the other proceedings and provides for any of the four following matters, namely, periodical payments for a spouse of the marriage in question, periodical payments for a child, the custody of a child and the education of a child then, on the imposition of the stay in a case where the order is in force when the stay is imposed and on the coming into force of the order in any other case (a)any relevant order made in connection with the stayed proceedings shall cease to have effect in so far as it makes for a spouse or child any provision for any of those matters as respects which the same or different provision for that spouse or child is made by the other order; (b)the court shall not have power in connection with the stayed proceedings to make a relevant order containing for a spouse or child provision for any of those matters as respects which any provision for that spouse or child is made by the other order; and (c)if the other order contains provision for periodical payments for a child, the court shall not have power in connection with the stayed proceedings to make a lump sum order for that child. (4) If any proceedings are stayed so far as they consist of matrimonial proceedings of a particular kind but are not stayed so far as they consist of matrimonial proceedings of a different kind, sub-paragraphs (2) and (3) shall not apply to the proceedings but, without prejudice to the effect of the stay apart from this paragraph, the court shall not have power to make a relevant order or a lump sum order in connection with the proceedings so far as they are stayed; and in this sub-paragraph references to matrimonial proceedings do not include proceedings for a declaration. (5) Nothing in this paragraph affects any power of the court (a)to vary or discharge a relevant order so far as the order is for the time being in force; or (b)to enforce a relevant order as respects any period when it is or was in force; or (c)to make a relevant order or a lump sum order in connection with proceedings which were but are no longer stayed. 1. In this Schedule "the Committee" means the Northern Ireland Matrimonial Causes Rules Committee. 2. The Committee shall consist of (a)the Lord Chief Justice, who shall be chairman; (b)two judges of the High Court or the Court of Appeal nominated from time to time by the Lord Chief Justice; (c)two county court judges nominated by the Lord Chancellor after consultation with the Lord Chief Justice; (d)the Master (Probate and Matrimonial) or a Registrar (Probate and Matrimonial) nominated by the Lord Chief Justice; (e)a circuit registrar nominated by the Lord Chancellor; (f)a practising member of the Bar of Northern Ireland nominated by the Lord Chancellor; (g)one other practising member of the Bar of Northern Ireland nominated by the Council thereof; (h)the president of the Incorporated Law Society of Northern Ireland or a member of the Council thereof nominated by him; (i)a practising solicitor nominated by that Council. 3. Where any member of the Committee is unable to act, the Lord Chief Justice, or, in the case of a member nominated by any other authority or body, that authority or body, may nominate another qualified person to act temporarily in his place. 4. Rules of court may be made and other powers of the Committee exercised at a meeting of the Committee by a majority consisting of not less than four members, of whom the chairman of the meeting shall be one. 5. In the absence of the Lord Chief Justice, the senior judge present shall be chairman of the meeting. 6. The joint secretaries to the Committee shall be such persons as the Lord Chancellor, after consultation with the Lord Chief Justice, may from time to time designate, and one of the persons so designated shall be either the Principal Secretary to the Lord Chief Justice or another officer serving in the Supreme Court. 7. Such of the joint secretaries to the Committee as the Lord Chancellor may designate shall, in relation to rules of court, be the responsible officer within the meaning of [Articles 5 and 7 of the Statutory Rules (Northern Ireland) Order 1979]. 8. The Committee shall not, except with the concurrence of the Treasury, make a rule which may involve an increase in expenditure out of public funds; but the validity of such a rule shall not, in any proceedings in any court, be called in question either by the court or by any party to the proceedings on the ground only that the Treasury did not concur or are not expressed to have concurred in the making of the rule. 9. Any expenses incurred by the Committee shall be paid by the Lord Chancellor. 1.(1) In this Schedule "the Act of 1939" means the Matrimonial Causes Act (Northern Ireland) 1939; "the Act of 1951" means the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1951. (2) If different days are appointed under Article 1(2) for the commencement of different provisions of this Order, any reference in this Schedule to the commencement of this Order shall, in relation to any such provision, be construed as a reference to the commencement of that provision. 2. Subject to paragraph 3, any application made or proceeding begun under any statutory provision repealed by this Order, being an application or proceeding which is pending at the commencement of this Order, shall be deemed to have been made or begun under any provision of this Order which corresponds to that statutory provision. 3. Nothing in Part II of this Order shall apply in relation to any petition for divorce or judicial separation presented before the commencement of this Order, and notwithstanding any repeal or amendment made by this Order the Act of 1939 and any rules of court made for the purposes of that Act shall continue to have effect in relation to proceedings on any such petition which are pending at the commencement of this Order as they had effect immediately before the commencement of this Order. 4. Notwithstanding any repeal or amendment made by this Order, the Act of 1939 and any rules of court made for the purposes of that Act shall continue to have effect in relation to (a)any proceedings on a petition for damages for adultery or for restitution of conjugal rights presented before the commencement of this Order which are pending at the commencement of this Order, and (b)any proceedings for relief under section 17(2) or (3), 19(4), 20(2) or 22(2) of the Act of 1939 (as extended, in the case of section 22, by section 7 of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966) brought in connection with proceedings on a petition for restitution of conjugal rights so presented, being proceedings for relief which are themselves pending at the commencement of this Order, 5. Subject to the provisions of this Order (and, in particular, to Articles 16 and 51(2)) and to rules of court, in exercising its jurisdiction in relation to nullity of marriage the court may act and may give relief on principles and rules which, in the opinion of the court, are as nearly as may be conformable to those on which the ecclesiastical courts of Ireland acted and gave relief before 1st January 1871. 6. In Article 6 any reference to a decree of judicial separation includes a reference to a decree of divorce a mensa et thoro granted before 1st October 1939. 7. Article 16(1) replaces, in relation to any decree to which it applies, any rule of law whereby a decree may be refused by reason of approbation, ratification or lack of sincerity on the part of the petitioner or on similar grounds. 8. In the application of Article 25(1)(d), (e) or (f) to any proceedings begun between 14th November 1966 and the commencement of this Order, Article 25 shall have effect as if, in paragraph (b) in the definition of "child of the family" in Article 2(2), for the reference to any other child such as is there mentioned there were substituted a reference to a child of one party such as is mentioned in section 7(1) of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966; and in the corresponding application to any proceedings begun before 15th November 1966, Article 25 shall have effect as if the said paragraph (b) were omitted. 9. Where the party chargeable under a maintenance agreement within the meaning of Article 36 died before the date of the commencement of this Order, then (a)paragraph (1) of that Article shall not apply to the agreement unless there remained undistributed on that date assets of that party's estate (apart from any property in which he had only a life interest) representing not less than four-fifths of the value of that estate for probate after providing for the discharge of his funeral, testamentary and administrative expenses, debts and liabilities, including any capital transfer tax or estate duty payable out of his estate on his death, but not including any liability arising by virtue of that paragraph; and (b)nothing in that paragraph shall render liable to recovery, or impose any liability upon the personal representatives of that party in respect of, any part of that party's estate which had been distributed before that date. 10. No right or liability shall attach by virtue of Article 36(1) in respect of any sum payable under a maintenance agreement within the meaning of that Article in respect of a period before the commencement of this Order. 11. In relation to such proceedings as are mentioned in Article 45(1) which were begun between 14th November 1966 and the commencement of this Order or begun before 15th November 1966, Article 45(1) shall have effect as if, respectively, in paragraph (b) in the definition of "child of the family" in Article 2(2) for the reference to any other child such as is there mentioned there were substituted a reference to a child of one party such as is mentioned in section 7(1) of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966, or the said paragraph (b) were omitted. 12. Article 45(2) shall not apply in relation to an order made under section 4 of the Act of 1951 before the commencement of this Order and deemed by virtue of section 29 of the Interpretation Act (Northern Ireland) 1954 to be made under Article 29. 13.(1) No proceedings for divorce shall be entertained by the court by virtue of Article 49(2) or (6) while proceedings for divorce or nullity of marriage begun before 1st January 1974 are pending (in respect of the same marriage) in England and Wales, Scotland, the Channel Islands or the Isle of Man; and provision may be made by rules of court as to when for the purposes of this paragraph proceedings are to be treated as begun or pending in any of those places. (2) Nothing in Article 49 affects the court's jurisdiction to entertain any proceedings begun before 1st January 1974. 14.(1) Article 51(1) shall not apply in relation to any petition for divorce or judicial separation presented before the commencement of this Order. (2) Article 51(2) applies whether the marriage took place, or the proceedings were instituted, before or after the commencement of this Order. 15. In Article 54(3) any reference to rules of court as defined by section 21(4) of the Interpretation Act (Northern Ireland) 1954 includes a reference to such rules as so defined by any amendment of that Act for which provision is made by any Act of the Session in which this Order is made (whether or not that amendment is yet in force). 16. In paragraph 2 of Schedule 2 in sub-paragraph (d) the reference to the Master (Probate and Matrimonial) or a Registrar (Probate and Matrimonial) includes a reference to, respectively, the Chief Probate Registrar or an Assistant Probate Registrar, and in sub-paragraph (e) the reference to a circuit registrar includes a reference to a clerk of the Crown and peace. 17. The amendment made by Schedule 4 in section 1(1) of the Matrimonial Causes (Reports) Act (Northern Ireland) 1966 shall not prevent that Act having the same application in relation to any proceedings for restitution of conjugal rights which are continued by paragraph 4 as it would have had if the amendment had not been made. 18.(1) Subject to sub-paragraphs (2) to (5), a marriage celebrated after 30th September 1939 and before the commencement of this Order shall (without prejudice to any other grounds on which a marriage celebrated before that time is by law void or voidable) be voidable on the ground (a)that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; or (b)that at the time of the marriage either party to the marriage (i)was of unsound mind; or (ii)was subject to recurrent attacks of insanity or epilepsy; or <(iii)was a person requiring special care within the meaning of the Mental Health Act (Northern Ireland) 1961; or (c)that the respondent was at the time of the marriage suffering from venereal disease in a communicable form; or (d)that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Subject to sub-paragraph (3), in relation to a marriage celebrated before 2nd April 1962 for subheads (ii) and (iii) of sub-paragraph (1)(b) there shall be substituted <"(ii)was subject to recurrent fits of insanity or epilepsy; or <(iii)might have been ascertained, in accordance with the provisions of Part III of the Mental Health Act (Northern Ireland) 1948, to be a person requiring special care within the meaning of that Act; or". (3) In relation to a marriage celebrated before 1st January 1949 sub-paragraph (1)(b)(iii) shall be omitted. (4) The court shall not grant a decree of nullity in a case falling within sub-paragraph (1)(b), (c) or (d) unless it is satisfied that (a)the petitioner was at the time of the marriage ignorant of the facts alleged; and (b)proceedings were instituted within a year from the date of the marriage; and (c)marital intercourse with the consent of the petitioner has not taken place since the petitioner discovered the existence of the grounds for a decree; (5) Nothing in this paragraph shall be construed as validating a marriage which is by law void but with respect to which a decree of nullity has not been granted. 19.Where a decree of nullity was granted before the commencement of this Order in respect of a voidable marriage, any child who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled shall be deemed to be their legitimate child. 20. Article 20(2) shall not apply in a case where the death occurred before the commencement of this Order but section 15 of the Act of 1939 (which provides that certain property of a wife judicially separated from her husband shall devolve, on her death intestate, as if her husband had then been dead) shall continue to apply in any such case. 21.(1) An order made under section 19(1) or (2) of the Act of 1939 (including either of those subsections as applied by section 19(7)) shall, notwithstanding anything in the order, cease to have effect on the remarriage after the commencement of this Order of the person in whose favour the order was made, except in relation to any arrears due under it on the date of the remarriage. (2) An order made under section 17(2) or (3), 19(4) (including that subsection as applied by section 19(7)) or 20(2) of the Act of 1939 or section 4 of the Act of 1951 shall, if the marriage of the parties to the proceedings in which the order was made was or is subsequently dissolved or annulled but the order continues in force, cease to have effect on the remarriage after the commencement of this Order of the party in whose favour the order was made, except in relation to any arrears due under it on the date of the remarriage. 22. Article 40 shall apply in relation to an order made under section 17(2) or (3), 19(1), (2) or (4) (including those subsections as applied by section 19(7)) or 20(2) of the Act of 1939 or under section 4 of the Act of 1951 as it applies in relation to a periodical payments or secured periodical payments order in favour of a party to a marriage. 23.(1) Subject to the provisions of this paragraph, Article 33 shall apply, as it applies to the orders mentioned in paragraph (2) thereof, to (a)an order made under any of the following provisions of the Act of 1939, that is to say, (i)in section 19, subsections (1), (2), (3) and (4) (including those subsections as applied by subsection (7)), but excluding subsection (4) so far as it applies to an order made in connection with a decree for restitution of conjugal rights); (ii)section 20(1), where the order is made in connection with a decree for judicial separation; <(iii)section 22(1), in so far as it relates to the maintenance of a child, and section 22(3); (b)an order made under section 4 of the Act of 1951; (c)an order such as is mentioned in section 19(6) of the Act of 1939 made in proceedings for judicial separation or for a divorce a mensa et thoro; (d)an order for alimony pending suit made in proceedings for judicial separation. (2) Subject to the provisions of this paragraph, the court hearing an application for the variation of an order made as mentioned in sub-paragraph (1) shall have power to vary that order in any way in which it would have power to vary it had the order been made under the corresponding provision of Part III. (3) Article 33, as it applies by virtue of sub-paragraph (1), shall have effect as if for paragraphs (4), (5) and (6) there were substituted the following paragraphs "(4) The court shall not exercise the powers conferred by this Article in relation to an order made under section 20(1) of the Matrimonial Causes Act (Northern Ireland) 1939 ("the Act of 1939") in connection with the grant of a decree of judicial separation except on an application made in proceedings (a)for the rescission of that decree, or (b)for the dissolution of the marriage in question. (5) No order for the payment of a lump sum and no property adjustment order shall be made on an application for the variation of any order made under section 19(1), (2) or (4) (including those subsections as applied by section 19(7)) or section 22(1) or (3) of the Act of 1939 or section 4 of the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1951 ("the Act of 1951"). (6) In the case of an order made under section 19(1) (including that subsection as applied by section 19(7)) or section 22(3) of the Act of 1939 or under section 4 of the Act of 1951, requiring a party to a marriage to secure an annual sum or periodical payments to any other person, an application under this Article relating to that order may be made after the death of the person liable to make payments under the order by the person entitled to the payments or by the personal representatives of the deceased person, but no such application shall, except with the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of that person is first taken out."; (4) In relation to an order made before 13th February 1951 under section 19(1) of the Act of 1939 on or after granting a decree of divorce or nullity of marriage, the powers conferred by this paragraph shall not be exercised unless the court is satisfied that the case is one of exceptional hardship which cannot be met by discharge, variation or suspension of any other order made by reference to that decree, being an order made under section 19(2) of the Act of 1939. 24.(1) Paragraphs (1) and (3) of Article 33 shall apply to an order made under section 17(2) or (3) of the Act of 1939 or under section 19(4) of that Act in its application to proceedings for restitution of conjugal rights, or under section 20(2) or 22(2) of that Act, and to an order for alimony pending suit made in proceedings for restitution of conjugal rights, as they apply to the orders mentioned in paragraph (2) of Article 33. (2) In exercising the powers conferred by virtue of this paragraph the court shall have regard to all the circumstances of the case, including 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. 25. Article 45(7) shall apply in relation to an order for the custody or education of a child made under section 22(1) or (2) of the Act of 1939, as it applies in relation to an order made under Article 45. 26. The power of the court under Article 25(1) or (2)(a) or 45(1)(a) to make from time to time a financial provision order or, as the case may be, an order for custody or education in relation to a child of the family shall be exercisable notwithstanding the making of a previous order or orders in relation to the child under section 22(1) of the Act of 1939. 27. Article 34 shall apply in relation to the enforcement, by proceedings begun after the commencement of this Order, of the payment of arrears due under an order made under section 17(2), 19, 20(2) or 22 (so far as it relates to the maintenance of a child) of the Act of 1939 or section 4 of the Act of 1951 or an order for alimony pending suit made in proceedings for judicial separation or restitution of conjugal rights as it applies in relation to the enforcement of the payment of arrears due under any such order as is mentioned in that Article. 28. Article 35 shall apply to an order made or deemed to have been made under any of the provisions of the Act of 1939 mentioned in paragraph 27 as it applies to the orders mentioned in Article 35(2). 29.(1) Article 39 shall apply in relation to proceedings for relief under section 17(2) or (3), 19(4), 20(2) or 22(2) of the Act of 1939 continuing by virtue of paragraph 4(b) as it applies in relation to proceedings for relief under any of the provisions of this Order specified in Article 39(1). (2) Without prejudice to sub-paragraph (1), Article 39 shall also apply where an order has been obtained under any of the following provisions of the Act of 1939, that is to say, sections 17, 19, 20, 22(1) (in so far as it relates to the maintenance of a child) and section 22(3) or under section 4 of the Act of 1951 as it applies where an order has been obtained under any of the provisions of this Order specified in Article 39(1). 30. Articles 46 and 47 shall apply where the court has jurisdiction by virtue of paragraph 4(b) to make an order for the custody of a child under section 22(2) of the Act of 1939 as they apply where the court has jurisdiction to make an order for custody under Part IV of this Order, but as if the reference in Article 46(2) to a financial provision order in favour of the child were a reference to an order for payments for the maintenance and education of the child. 31. Except where specific provision to the contrary is made in this Order, nothing in this Order shall affect the provisions of sections 28 and 29 of the Interpretation Act (Northern Ireland) 1954 (effect of repeals and of substituting provisions). Schedule 4Amendments. Schedule 5Repeals 1954 c.33

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Statutes of Northern Ireland