Cohabitants

1.^[1] In this Order:

“the Act” means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; “the Act of 2004” means the Civil Registration Act 2004;

“civil partnership law proceedings” has the same meaning as in section 139 of the Act;

“cohabitation proceedings” means proceedings under Part 15 of the Act, and reference to registration of a civil partnership includes, in the case of a civil partnership recognised by virtue of section 5 of the Act, registration of a legal relationship as referred to in that section.

“dependent child” and “dependent child of the civil partners” each has the same meaning as in section 2 of the Act, and

 

Venue

2. Any proceedings under this Order shall be brought in the county where any party to the proceedings ordinarily resides or carries on any profession, business or occupation.

 

Commencement of civil partnership or cohabitation proceedings

3. (1) All proceedings for the following reliefs in civil partnership law proceedings under this Order shall be instituted by the issuing out of the Office for the appropriate county of the  appropriate Civil Partnership Civil Bill in accordance with Form 2S of the Schedule of Forms with such modifications as may be appropriate in the format and manner provided:

(a) an order under section 4(1) of the Act including where such relief is sought by virtue of an order made under section 5 of the Act;

(b) an order on an application by a civil partner to have a conveyance declared void, under section 28 of the Act, or for relief under section 34 of the Act;

(c) an order under section 29(1) of the Act to the Court to dispense with the consent of a civil partner required under section 28 of the Act or section 29(4) of the Act to give the consent required under section 28 of the Act on behalf of a civil partner;

(d) relief under section 30(1) of the Act or section 30(2) of the Act;

(e) relief under Part 5 of the Act;

(f) an order on an application by a civil partner or a child of a deceased person who was a civil partner before death under section 106 of the Act to determine a question arising between civil partners as to the title to or possession of property;

(g) a decree of nullity of civil partnership under section 107 of the Act;

(h) a decree of dissolution in respect of a civil partnership under section 110 of the Act;

(i) an order for provision out of the estate of a deceased civil partner under section 127 of the Act;

(j) an order directing the sale of property under section 128 of the Act; (k) subject to rule 23, an order setting aside a disposition under section 137 of the Act.

(2) Cohabitation proceedings for any one or more orders under sections 174, 175, 187 and 194 of the Act shall be instituted by the issuing out of the Office for the appropriate county of the appropriate Cohabitation Civil Bill in accordance with Form 2T of the Schedule of Forms with such modifications as may be appropriate.

(3) Upon issue, the Civil Partnership Civil Bill or Cohabitation Civil Bill shall be served in a manner provided for in this Order.

 

Form of Proceedings

4. ^[2](1) Every Civil Partnership Civil Bill and every Cohabitation Civil Bill shall be in numbered paragraphs setting out the relief sought and the grounds relied upon in support of the application.

(2) A Civil Partnership Civil Bill for a Decree of Dissolution shall, in all cases, include the following details—

(a) the date and place of registration of the civil partnership;

(b) the length of time the parties have lived apart, including the date upon which the parties commenced living apart, and the addresses of both of the parties during that time, where known;

(c) the ages of the civil partners, the duration of their civil partnership and the length of time during which the civil partners lived with each other after registration of their civil partnership;

(d) any physical or mental disability of either of the civil partners;

(e) full particulars of every dependent child of the civil partners, stating whether and if so what provision has been made for each and any such dependent child;

(f) whether any possibility of a reconciliation between the Applicant and Respondent exists and if so on what basis the same might take place;

(g) details of any previous civil partnership relief sought and/or obtained and details of any previous separation agreement entered into between the parties (and where appropriate, a certified copy of any relevant court order and/or agreement should be annexed to the Civil Bill);

(h) details of any previous matrimonial or family law relief sought and/or obtained and details of any previous separation agreement entered into by either party with any other person (and where appropriate a certified copy of any relevant court order and/or deed of separation/separation agreement should be annexed to the Civil Bill);

(i) details of the shared home(s) and/or other residences of the parties including, if relevant, details of any former shared home/residence to include details of the manner of occupation/ownership thereof;

(j) where reference is made in the Civil Bill to any immovable property, whether it is registered or unregistered land and a description of the land/premises so referred to;

(k) the basis of jurisdiction under section 140 of the Act;

(l) the occupation(s) of each party;

(m) the grounds relied upon for the relief sought;

(n) each section of the Act under which relief is sought;

(o) any other matter which will assist the Court for the purposes set out in section 129(2) of the Act.

(3) A Civil Partnership Civil Bill for nullity shall, in all cases, include such of the particulars mentioned in sub-rule (2) as are appropriate and the following details—

(a) the date and place of registration of the civil partnership;

(b) the domicile of  the civil partners on the date of the civil partnership and on the date of the institution of proceedings and, where either civil partner has died prior to the institution of proceedings, the domicile of the said civil partner at the date of death;

(c) whether or not the civil partners or either of them has been ordinarily resident in the State throughout the period of one year prior to the date of institution of proceedings and, where either civil partner has died prior to the institution of proceedings, whether or not the said deceased civil partner was ordinarily resident in the State throughout the period of one year prior to his or her death;

(d) the address and description of each party;

(e) full particulars of every dependent child of the civil partners, stating whether and if so what provision has been made for each and any such dependent child;

(f) the grounds upon which the decree and any other relief is sought;

(g) the relief sought and the issues to be tried.

(4) A Civil Partnership Civil Bill for the determination of property issues between civil partners pursuant to section 106 of the Act shall, in all cases, include such of the particulars mentioned in sub-rule (2) as are appropriate and the following details—

(a) the description, nature and extent of the money or other property to which the application relates;

(b) the state of knowledge of the Applicant civil partner in relation to possession and control of the money or other property to which the application relates at all relevant times;

(c) the nature and extent of the interest being claimed by the Applicant in the property or monies and the basis upon which such a claim is made;

(d) the nature and extent of any claim for relief being made and the basis upon which any such claim for relief is being made;

(e) where reference is made in the Civil Bill to any immovable property, whether it is registered or unregistered land and a description of the land/premises so referred to;

(f) the manner in which it is claimed that the Respondent civil partner has failed, neglected or refused to make to the Applicant civil partner such appropriate payment or disposition in all of the circumstances and details of any payment or disposition made;

(g) any other relevant matters.

(5) A Civil Partnership Civil Bill for relief pursuant to section 127 of the Act shall, in all cases, include such of the particulars mentioned in sub-rule (2) as are appropriate and the following details—

(a) the date and place of the registration of the civil partnership and the date of any decree of dissolution and the civil partnership registration form and a certified copy of any decree of dissolution shall be annexed to the Civil Bill (with authenticated translations, where appropriate);

(b) details of previous civil partnership relief obtained by the Applicant and in particular lump sum maintenance orders and property adjustment orders, if any;

(c) details of any benefits previously received from or on behalf of the deceased civil partner whether by way of agreement or otherwise and details of any benefits accruing to the Applicant under the terms of the will of the deceased civil partner or otherwise;

(d) the date of death of the deceased civil partner, the date on which representation was first granted in respect of the estate of the said civil partner and, if applicable, the date upon which notice of the death of the deceased civil partner was given to the Applicant civil partner and the date upon which the Applicant civil partner notified the personal representative of his/her intention to apply for relief pursuant to section 127(8) of the Act; (e) the nature and extent of any claim for relief being made and the basis upon which any such claim for relief is being made;

(f) the civil partnership or marital status of the deceased civil partner at the date of death and the civil partnership or marital status of the Applicant at the date of the application and whether the Applicant has entered into a new civil partnership or a marriage since the dissolution of the civil partnership between the Applicant and the deceased civil partner;

(g) details of all dependants of the deceased civil partner at the date of death and of all dependants of the Applicant at the date of the application together with details of any other interested persons;

(h) that no order pursuant to section 127(11) of the Act has previously been made;

(i) details of the value of the estate of the deceased civil partner, where known;

(j) any other relevant facts.

(6) Applications pursuant to section 127(7) of the Act by the personal representative in relation to the distribution of the estate shall be by motion, grounded on affidavit, on notice to the Applicant civil partner and such other persons as the Court shall direct.

(7) A Civil Partnership Civil Bill for relief under section 4 of the Act, shall include such of the particulars mentioned in sub-rule (2) as are appropriate and:

(a) the nature of the Applicant’s reason for seeking the relief sought under section 4 of the Act;

(b) full details of the registration of the civil partnership and/or dissolution of the civil partnership in respect of which the declaration is sought including the date and place of such civil partnership was registered and/or dissolved (and, where appropriate, a certified copy of the civil partnership registration form and/or decree of dissolution should be exhibited to the affidavit);

(c) where a declaration is sought under section 4 by virtue of an order made under section 5 of the Act, a certified copy of the instrument of registration or of dissolution (with, where appropriate, an authenticated translation thereof, exhibited to the affidavit);

(d) particulars of any previous or pending proceeding(s) in relation to any civil partnership concerned or relating to the civil partnership or matrimonial status of a party to the civil partnership concerned;

(e) the rights of any person other than the civil partners concerned which may be affected by the relief sought, including a person with whom either civil partner is registered in a new civil partnership or to whom either civil partner is married, or any dependent child of the civil partners.

(8) A Civil Partnership Civil Bill for relief under Part 4 of the Act shall in all cases contain such of the particulars mentioned in sub-rule (2) as are appropriate and the following details—

(a) the address and description of the shared home;

(b) the date and place of registration of the civil partnership of the parties;

(c) the residential address and occupation of the Applicant and the Respondent (if known);

(d) the relief being sought and the facts intended to be relied upon;

(e) the rateable valuation of the premises;

(f) any other relevant circumstances.

(9) A Civil Partnership Civil Bill for relief under Part 5 of the Act shall, in all cases, contain such of the particulars mentioned in sub-rule (2) as are appropriate and the following details—

(a) the precise reliefs being sought and the persons in respect of whom they are being sought;

(b) the residential address and occupation of the Applicant and the Respondent (if known);

(c) the date and place of registration of the civil partnership of the parties;

(d) full particulars of every dependent child of the civil partners, stating whether and if so what provision has been made for each and any such dependent child;

(e) the nature of the failure to maintain being asserted;

(f) any relevant change of circumstances (if applicable);

(g) any other relevant circumstances.

(10) A Cohabitation Civil Bill shall contain such of the following particulars mentioned in this sub-rule as are appropriate—

(a) particulars of the duration of the relationship between the parties and of the duration of their cohabitation;

(b) particulars of the basis on which the parties live together;

(c) the degree of financial dependence of either party on the other and any agreements in respect of their finances;

(d) particulars of the degree and nature of any financial arrangements between the parties including any joint purchase of an estate or interest in land or joint acquisition of personal property;

(e) whether there are one or more dependent children of either or both parties;

(f) whether one of the parties cares for and supports any child of the other;

(g) the degree to which the parties present themselves to others as a couple;

(h) any physical or mental disability of either of the parties;

(i) full particulars of any children of the Applicant or Respondent and of any child of a previous relationship of either party and stating whether and if so what provision has been made for each and any such child;

(j) details of any previous matrimonial, family law or civil partnership relief obtained by either of the parties (and where appropriate a certified copy of any relevant Court order and/or agreement should be exhibited to the affidavit);

(k) where each party is domiciled at the date of the application commencing the proceeding or where each party has been ordinarily resident for the year preceding the date of such application;

(l) details of the place(s) where the parties have lived together during their relationship;

(m) where reference is made in the Cohabitation Civil Bill to any immovable property whether it is registered or unregistered land and a description of the lands/premises so referred to;

(n) any other matter which will assist the Court for the purposes set out in section 173(3) of the Act.

(11) In the case of an application for provision out of the estate of a deceased cohabitant under section 194 of the Act, the Cohabitation Civil Bill shall include such of the particulars mentioned in sub-rule (10) as are appropriate and:

(a) details of any previous cohabitation reliefs obtained by the Applicant;

(b) details of any benefit received from or on behalf of the deceased cohabitant whether by way of agreement or otherwise and details of any benefits accruing to the Applicant under the terms of the will of the deceased cohabitant or otherwise;

(c) the date of death of the deceased cohabitant, the date upon which representation was first granted in respect of the estate of the said cohabitant and the date upon which the Applicant notified the personal representative of an intention to apply for relief pursuant to section 194(6) of the Act;

(d) the civil partnership or marital status of the deceased cohabitant at the date of death and the civil partnership or marital status of the Applicant at the date of the application;

(e) details of the dependants of the deceased cohabitant at the date of death, of the dependants of the Applicant at the date of the application, and of any other interested persons;

(f) details of whether any order has previously been made under section 173(7) of the Act;

(g) details of the value of the estate of the deceased cohabitant where known.

5. All Civil Partnership Civil Bills and Cohabitation Civil Bills shall be dated and shall bear the name, address and description of the Applicant and an address for service of proceedings, and shall be signed by the party’s Solicitor, if any, or, where the Applicant does not have a Solicitor, by that party personally. The address to which a Respondent should apply in order to receive information in relation to legal aid shall also be included in such Civil Bills.

 

Issuing and Entry

6. ^[3]On the issuing of a Civil Partnership Civil Bill or Cohabitation Civil Bill a copy thereof shall be filed, together with an Affidavit of Means, and, in all cases where there is a dependent child of the civil partners, an Affidavit of Welfare (in the form set out in Form 37B of the Schedule of Forms, with the necessary modifications) in the intended action sworn by the Applicant in compliance with rules 17 and 18 and the County Registrar shall thereupon enter same.

 

Service

7. ^[4] (1) All Civil Partnership Civil Bills and all Cohabitation Civil Bills shall be served. In any case in which financial relief is sought, a copy of the Affidavit of Means in compliance with rules 17 and 18 in the form set out in Form 51 of the Schedule of Forms or such modification thereof as may be appropriate shall be served with the Civil Bill. In all cases where there is a dependent child of the civil partners, a copy of the Affidavit of Welfare shall be served with the Civil Bill. Where relief pursuant to section 121 of the Act or section 187 of the Act is sought, notice thereof in accordance with Form 51A of the Schedule of Forms shall also be served on the trustees of the pension scheme in question in accordance with Order 11, rule 17, and an Affidavit of such service sworn and filed within 14 days of service of the Civil Bill. All other pleadings in proceedings begun in accordance with this rule may be served in accordance with Order 11, rule 17 and shall be deemed to have been served on the second day after the day of posting.

(2) Where relief is sought pursuant to section 127 of the Act, the Civil Partnership Civil Bill shall be served in accordance with these Rules on the personal representative of the deceased, and on the civil partner or spouse (if any) of the deceased and on such other person or persons as the Court shall direct. Where relief is sought pursuant to section 194 of the Act, the Cohabitation Civil Bill shall be served in accordance with these Rules on the personal representative of the deceased, and on the civil partner or spouse (if any) of the deceased and on such other person or persons as the Court shall direct.

(3) Where, in any application pursuant to this Order, it is appropriate to direct an order to any third person who is not a party to the proceedings, the Court may if it thinks fit adjourn the matter and direct the Applicant or the Respondent to notify the third person against whom an order is sought of the fact that an order is sought against him and of the adjourned date, so that this said third person may appear and be heard in relation to the making of the said order. Alternatively, the Court may, when making an order directed to any third person, provide, in the said order, that the said third person should have liberty to apply to the Court on notice to the Applicant and the Respondent to set aside the order made insofar as it is directed against or relates to the said third person.

 

Appearance

8. If a Respondent intends to contest the application, or any part thereof, he/she shall enter an Appearance in the Office within 10 days of the service upon him/her of the Civil Partnership Civil Bill or, as the case may be, the Cohabitation Civil Bill, and shall serve a copy of the Appearance and appropriate certificate on the Applicant’s Solicitors or, where appropriate, on the Applicant. The Appearance shall bear an address for service of any interlocutory applications and shall be signed by the Respondent’s Solicitor or, if the Respondent does not have a Solicitor, by the Respondent personally.

 

Defence

9. ^[5] (1) A Respondent shall at the same time as entering an Appearance, or within 10 clear days from the date of service of the Appearance, or such further time as may be agreed between the parties or allowed by the Court, file and serve a Defence, together with an Affidavit of Means (where required) and, in all cases where there is a dependent child of the civil partners, an Affidavit of Welfare (in the form set out in Form 37B of the Schedule of Forms, with the necessary modifications) in compliance with rules 17 and 18, on the Applicant, or the applicant’s Solicitor, if any, and on the County Registrar in the form set out in Form 51 or such modification thereof as may be appropriate. Where relief pursuant to section 121 or section 187 of the Act is sought by way of Counterclaim, notice thereof in accordance with Form 51A of the Schedule of Forms shall also be served on the trustees of the pension scheme in question and an Affidavit of such service sworn and filed within seven days of service of the Defence and Counterclaim.

(2) No Appearance or Defence shall be entered after the time specified in these Rules without the leave of the Court or of the County Registrar or the agreement of the parties, and no Defence shall be entered unless the Respondent has previously entered an Appearance as required by these Rules.

(3) Whether or not a Defence is filed and served in any proceedings, the Respondent shall, where appropriate, in any event be obliged to file and serve an Affidavit of Means and an Affidavit of Welfare within 20 days after the service of the Civil Partnership Civil Bill or, as the case may be, the Cohabitation Civil Bill, upon him/her.

(4) Without prejudice to the entitlement of the Court to permit representations in relation to the making or refusal of an attachment of earnings order at the hearing of the action, such representations for the purposes of section 117(7) or section 175(7) of the Act may be included in the Defence.

 

Motions for Judgment

10.^[6] (1) In any case in which a Respondent has made default in entering an Appearance or filing a Defence, as the case may be, the Applicant may, subject to the provisions of this rule, at any time after such default, on notice to be served on the Respondent and, where relief pursuant to section 121 or section 187 of the Act is sought, on the trustees of the pension scheme concerned, not less than fourteen days before the hearing, apply to the Court for judgment in default of Appearance or Defence. Such application, save in the case of motions returnable in the Dublin Circuit, shall be returnable initially before the County Registrar in accordance with Order 59, rule 68(1) as applied to civil partnership law proceedings and cohabitation proceedings.

(2) No notice of motion for judgment in default of defence shall be served unless the Applicant has at least fourteen days prior to the service of such notice written to the Respondent giving him notice of his/her intention to serve a notice of motion for Judgment in default of defence and at the same time consenting to the late filing of a Defence within fourteen days from the date of the letter.

(3) If no Defence is delivered within the said period the Applicant shall be at liberty to serve a notice of motion for Judgment in default of Defence which shall be returnable to a date not less than 14 clear days from the date of the service of the notice, such notice of motion to be filed not later than six days before the return date.

(4) If in any case the Applicant can establish special reasons for making it necessary to serve a notice of motion for Judgment in default of Appearance/Defence in the cases provided for by this Rule with greater urgency than in accordance with the provisions hereinbefore contained, he may apply ex parte to the Court for an Order giving him liberty to serve a notice of motion for Judgment in default of Appearance/Defence giving not less than four clear days’ notice to the Respondent, or in the alternative the Judge may deem good the service of a notice of motion giving not less than four clear days’ notice to the Respondent.

(5) Upon the hearing of such application the Court may, on proof of such default as aforesaid, and upon hearing such evidence, oral or otherwise, as may be adduced, give judgment upon the Applicant’s claim endorsed upon the Civil Partnership Civil Bill or, as the case may be, the Cohabitation Civil Bill, or may give leave to the Respondent to defend the whole or part of the claim upon such terms as he or she may consider just.

(6) In any case in which the parties are agreed in respect of all of the reliefs being sought and a Defence in accordance with rule 9 has been filed and served by the Respondent which reflects this agreement, the Applicant or the Respondent may, subject to the provisions of the following sub-rules, at any time after such Defence has been filed and served, on notice to be served on the other party and, where relief pursuant to section 121 or section 187 of the Act is sought, on the trustees of the pension scheme concerned, not less than 14 clear days before the hearing, apply to the Court for judgment, the application to be by way of motion on notice.

(7) Upon the hearing of such application the Court may, upon hearing such evidence, oral or otherwise, as may be adduced—

(i) give judgment in the terms agreed between the parties, or

(ii) give such directions in relation to the service of a Notice of Trial/Notice to fix a date for Trial as to the Court appears just.

(8) Upon the hearing of an application for judgment under this Rule the Court may make such order as to costs as the Court considers just.

 

Notice of Trial / Notice to fix a date for Trial

11.^[7] Subject to rule 10(7) and (8) and to Order 59, rule 73(1)(g) as applied to civil partnership law proceedings and cohabitation proceedings, when a Defence has been duly entered and served, the Applicant may serve a notice of trial or a notice to fix a date for trial, as appropriate, in accordance with Forms 15A and 15B. Notice of Trial (Circuits other than Dublin Circuit)

12. This Rule shall not apply to the Dublin Circuit. Not less than ten days’ notice of trial shall be served upon the Respondent and all other necessary parties. Where relief is sought under section 121 or section 187 of the Act, notice of trial shall also be served upon the trustees of the pension scheme in question. The notice of trial shall be filed at the Office not later than seven days after it is served. Service and filing of the notice of trial shall operate to set down the action or matter (including counterclaim if any) for hearing at the next ensuing Sittings. The service of notice to fix a date for a trial, as duly completed in the Office, on all necessary parties shall operate to set down the action (including a counterclaim if any) for hearing, to be listed before the County Registrar for allocation of a date for the hearing.

 

Notice to fix a date for Trial (Dublin Circuit)

13. This rule shall apply only to the Dublin Circuit. A party desiring to give notice to fix a date for trial in accordance with rule 11 or rule 14 shall lodge with the Office a notice to fix a date for trial in the Form 15B of the Schedule of Forms. On receipt of such notice, duly completed, from the Office, that party shall serve a copy of the completed notice setting out the date upon which a date for hearing will be fixed by the County Registrar on all of the other parties and, where relief is sought under section 121 or section 187 of the Act, on the trustees of the pension scheme in question. At least ten days’ notice to fix a date for trial shall be given. The service of notice to fix a date for a trial, as duly completed in the Office, on all necessary parties shall operate to set down the action (including a counterclaim if any) for hearing upon such date as may be fixed by the County Registrar.

 

Service by Respondent

14. Where the Applicant has failed to serve a notice of trial or notice to fix a date for trial, as appropriate, within ten days after the service and entry of the Defence, the Respondent may do so and may file the same in accordance with these Rules.

 

Joinder

15. The Court, if it considers it desirable, may order that two or more actions be tried together, and on such terms as to costs as the Court shall deem just.

 

Affidavits of Representation

16. (1) Save where the Court shall otherwise direct, any notice party, including the trustees of a pension scheme, who wishes to make representations to the Court pursuant to section 122 or, as the case may be, section 188, of the Act shall make such representations by Affidavit of Representation to be filed and served on all parties to the proceedings within 28 days of service upon them of notice of the application for relief under section 121 or, as the case may be, section 187, of the Act in accordance with rules 7 and 9 or within such time or in such manner as the Court may direct.

(2) Without prejudice to the entitlement of the Court to permit representations by persons having a beneficial interest in property (not being the other civil partner) pursuant to section 128(5) of the Act or by interested persons pursuant to section 127(6) or section 194(6) of the Act at the hearing of the action, such representations may be made by way of Affidavit of Representation to be filed and served on all parties to the proceedings as directed by the Court.

 

Affidavit of Means

17. (1) Without prejudice to:

(a) the right of each party to request and/or make application to direct the delivery of further particulars or information;

(b) the right of each party to make application to the Court for an Order of Discovery; and

(c) the jurisdiction of the Court pursuant to section 142 and section 197 of the Act, in any case where financial relief under the Act is sought, the parties shall file Affidavits of Means in accordance with rules 6 and 9 in respect of which the following sub-rules shall apply.

(2) In all cases where a Defence and/or Counterclaim has been filed (save for a Defence pursuant to rule 10(6)) each party shall, unless the other party dispenses in writing with the requirement of vouching, vouch his Affidavit of Means, in the manner specified in Form 51C, within 28 days of the date of filing of the Respondent’s Affidavit of Means or 21 days before the date fixed for a case progression hearing, whichever is earlier.

(3) In all cases where a Defence has not been filed and a case progression hearing has been listed, each party shall vouch his Affidavit of Means within such time as the County Registrar shall direct.

(4) In the event of a party failing to file, serve, or properly vouch the items referred to in, their Affidavits of Means as required by these Rules—

(i) the Court, on application by notice of motion, and, in accordance with section 34(1) and the Second Schedule of the Courts and Court Officers Act 1995, the County Registrar, on application by notice of motion or in the course of case progression, may make an Order enlarging the time within which the party in default must file or serve an Affidavit of Means and/or vouch (in such manner or on such terms as the Court or the County Registrar, as the case may be, directs) the items referred to in any Affidavit of Means or may make an Order for Discovery, or

(ii) the Court may make such other order as the Court deems appropriate and necessary (including an order that such party shall not be entitled to pursue or defend as appropriate a claim for any ancillary reliefs under the Act save as permitted by the Court upon such terms as the Court may determine are appropriate and/or adjourning the proceedings for a specified period of time to enable compliance) and furthermore or in the alternative an [385] 17 order pursuant to section 142(2) of the Act or, as the case may be, section 197(2) of the Act, may be sought in accordance with rule 23.

18. The Affidavit of Means shall set out in schedule form details of the party’s income, assets, property, financial resources, debts, liabilities, financial obligations and financial responsibilities wherever situated and from whatever source and, to the best of the deponent’s knowledge, information and belief the income, assets, property, financial resources, debts, liabilities, financial obligations and financial responsibilities wherever situated and from whatever source of any dependent child of the party and shall be in accordance with the form set out in Form 51 or such modification thereof as may be appropriate.

19. Where relief pursuant to section 121 or section 187 of the Act is sought, the Affidavit of Means shall also state to the best of the deponent’s knowledge, information and belief, the nature of the scheme, the benefits payable thereunder, the normal pensionable age and the period of reckonable service of the member civil partner and where information relating to the pension scheme has been obtained from the trustees of the scheme under the Pensions Acts 1990 to 2009, such information should be exhibited in the Affidavit of Means and where such information has not been obtained a specific averment shall be included in the Affidavit of Means as to why such information has not been obtained.

 

Counterclaims

20. (1) Save where otherwise directed by the Court, a Counterclaim, if any, brought by a Respondent shall be included in and served with the Defence, in accordance with the provisions of these Rules relating thereto, and shall, in particular, set out in numbered paragraphs the matters set out in the following sub-rules, where relevant.

(2) In the case of an application for a decree of dissolution, the Counterclaim shall set out in like manner as in the Civil Partnership Civil Bill the facts specified at rule 4(2) in like manner as in the Civil Partnership Civil Bill, and the following:

(a) the ground(s) for a decree of dissolution, if sought;

(b) any ground upon which the Respondent intends to rely in support of any ancillary relief claimed; and

(c) the relief sought pursuant to the Act.

(3) In the case of an application for a decree of nullity, the Counterclaim shall set out in like manner as in the Civil Partnership Civil Bill such of the facts specified at rule 4(3) as are appropriate and the following:

(a) the ground(s) for a decree of nullity;

(b) any additional ground upon which the Respondent intends to rely in support of any relief claimed; and

(c) the relief sought and any additional issues to be tried.

(4) In the case of an application for the determination of property issues between civil partners, pursuant to section 106 of the Act, the Counterclaim shall set out in like manner as in the Civil Partnership Civil Bill such of the facts specified at rule 4(4) as are appropriate and the following:

(a) any additional ground upon which the Respondent intends to rely in support of any relief claimed; and

(b) the relief sought pursuant to the Act.

(5) In the case of an application for relief under section 4 of the Act, the Counterclaim shall set out in like manner as in the Civil Partnership Civil Bill such of the facts specified at rule 4(7) as are appropriate and the following:

(a) any additional ground upon which the Respondent intends to rely in support of any relief claimed; and

(b) the relief sought pursuant to the Act.

(6) In the case of an application for relief under Part 4 of the Act, the Counterclaim shall set out in like manner as in the Civil Partnership Civil Bill such of the facts specified at rule 4(8) as are appropriate and the following:

(a) any additional ground upon which the Respondent intends to rely in support of any relief claimed; and

(b) the relief sought pursuant to Part 4 of the Act.

(7) In the case of an application for relief under Part 5 of the Act, the Counterclaim shall set out in like manner as in the Civil Partnership Civil Bill such of the facts specified at rule 4(9) as are appropriate and the following:

(a) any additional ground upon which the Respondent intends to rely in support of any relief claimed; and

(b) the relief sought pursuant to Part 5 of the Act.

(8) In the case of an application for relief under Part 15 of the Act, the Counterclaim shall set out in like manner as in the Cohabitation Civil Bill such of the facts specified at rule 4(10) as are appropriate and the following:

(a) any additional ground upon which the Respondent intends to rely in support of any relief claimed; and

(b) the relief sought pursuant to Part 15 of the Act.

 

Evidence

21. ^[8] Save where the Court otherwise directs and subject to rule 25, every application under this Order shall be heard on oral evidence. Subject to any provision of statute and to any order of the Court made in accordance with Order 59, rule 6 in the case of an application under a relevant enactment (within the meaning of section 39 of the Civil Liability and Courts Act 2004), hearings of applications under this rule shall be held in camera.

22. Notwithstanding the provisions of rule 21, where relief pursuant to section 121 or section 187 of the Act is sought by the Applicant or the Respondent, evidence of the actuarial value of a benefit under the scheme may be by Affidavit filed on behalf of the Applicant/Respondent, such Affidavit to be sworn by an appropriate person and served on all parties to the proceedings and filed at least 14 days in advance of the hearing and subject to the right of the Respondent/Applicant to serve Notice of Cross-examination in relation to same. Where one of the parties has adduced evidence of the actuarial value of a benefit by Affidavit as provided for herein and the other party intends to adduce similar or contra oral evidence, notice of such intention shall be served by the disputing party upon all other parties at least 10 days in advance of the hearing.

 

Interim and Interlocutory Applications

23. (1) The following applications shall be by Notice of Motion to be served upon the parties to the proceedings and, in the case of applications pursuant to section 126(2) or section 192 of the Act, upon the trustees of the pension scheme concerned:

(a) an application for an Interim Order pursuant to section 47 of the Act;

(b) an application for a Preliminary Order pursuant to section 115 of the Act;

(c) an application for maintenance pending suit/relief pursuant to section 116 of the Act;

(d) an application for information pursuant to section 126(2) of the Act;

(e) an application for relief pursuant to section 137 of the Act, where that is not the primary relief sought in the proceedings;

(f) an application for relief pursuant to section 142(2) of the Act;

(g) an application for relief pursuant to section 197(2) of the Act;

(h) an application for any other interlocutory relief.

(2) Prior to any interlocutory application for discovery or application pursuant to section 142(2) or section 197(2) of the Act being made, the information being sought shall be requested in writing voluntarily at least 14 days prior to the issuing of the motion for the relief concerned and upon failure to make such a request, the judge may adjourn the motion or strike out the motion or make such other order, including an order as to costs, as to the Court may appear appropriate.

(3) Where an application for a decree of nullity involves an allegation that either or both of the parties was unable to give informed consent, the attestation to that effect mentioned in section 107(c)(iv) of the Act shall in the first instance be given by the consultant psychiatrist by way of Affidavit. Where any such attestation is disputed by the opposing party then, without prejudice to the right of that party to cross-examine and/or to adduce expert evidence, application may be made for the appointment of psychiatric inspectors in respect of the Applicant and/or the Respondent by Motion on Notice to the other party.

(4) In any application for a decree of nullity, application may be made for the appointment of medical and/or psychiatric inspectors in respect of the Applicant and/or the Respondent by Motion on Notice to the other party.

(5) A Motion mentioned in sub-rule (3) or (4) shall be issued not later than 14 days after the elapsing of the times for the entry of an Appearance and delivery of a Defence save with the leave of the Court or the County Registrar. Where medical and/or psychiatric inspectors are appointed by the Court or the County Registrar, the solicitors for the parties shall attend with the parties on the appointed day at the place in which the inspection is to take place for the purpose of identifying the parties to the County Registrar or his/her nominee. In any circumstances in which a party is unrepresented, appropriate photographic proof of identity must be produced sufficient to satisfy the County Registrar or his/her nominee of the identity of the party concerned. No inspection shall be carried out unless the procedures contained herein are satisfied. Upon completion of the inspection, a report thereof shall be sent by the inspector directly to the County Registrar for the County in which the proceedings have issued.

(6) In any case where the Court is satisfied that the delay caused by proceeding by Motion on Notice under this rule would or might entail serious harm or mischief, the Court may make an Order ex parte as it shall consider just. Urgent applications under this sub-rule may be made to a Judge at any time or place approved by him, by arrangement with the County Registrar for the County in question.

(7) Interim and interlocutory applications shall where appropriate be made to the County Registrar in accordance with the Second Schedule to the Court and Court Officers Act 1995 and Orders 18 and 19.

24. If on the date for hearing of any Application under this rule the matter is not dealt with by the Court for any reason, and, in particular, on foot of an adjournment sought by either party, the other party, whether consenting to the adjournment or not, may apply for, and the Court may grant, such interim or interlocutory relief as to it shall seem appropriate without the necessity of service of a Notice of Motion.

25. Any interim or interlocutory application shall be heard on Affidavit, unless the Court otherwise directs, save that the Deponent of any Affidavit must be available to the Court to give oral evidence or to be cross-examined as to the Court shall seem appropriate, save that a Motion for Discovery and a Motion in the course of nullity proceedings for the appointment of medical/psychiatric inspectors shall be heard on a Notice of Motion only. Where any oral evidence is heard by the Court in the course of such applications ex parte, a note of such evidence shall be prepared by the Applicant or the Applicant’s solicitor and approved by the Judge and shall be served upon the Respondent forthwith together with a copy of the Order made (if any), unless otherwise directed by the Court. Further relief and applications on behalf of dependent persons

26. (1) Where either party or a person on behalf of a dependent child of a civil partner or deceased civil partner wishes at any time after the hearing of the Application to seek further relief as provided for in the Act or to vary or discharge an order previously made by the Court that party shall issue a Notice of Motion to re-enter or to vary or discharge as the case may be grounded upon an Affidavit seeking such relief. Such Motions shall be subject to the provisions of rules 7, 16, 17, 18, 19, 21 and 22, as appropriate.

(2) Where a person on behalf of a dependent child of a civil partner or deceased civil partner wishes to make application for ancillary reliefs at the hearing of the action, such application shall be by way of Notice of Motion to be served on all other parties to the proceedings setting out the reliefs sought grounded on Affidavit which said Motion shall be listed for hearing on the same date as the hearing of the action contemporaneously therewith. Such Motions shall be subject to the provisions of rules 7, 16, 17, 18, 19, 21 and 22, as appropriate.

27. Where any party to proceedings for a declaration under section 4 of the Act alleges that the civil partnership in question was void or voidable and the Court decides to treat the application as one for a decree of nullity of the civil partnership, the provisions of this Order in relation to the procedures applicable to decrees of nullity may be adapted in such manner as the Court shall direct. Relief under section 59B(2) of the Act of 2004.

28. Applications under section 59B(2) of the Act of 2004 for an order exempting the civil partnership from the application of section 59B(1)(a) of the Act of 2004 may be made ex parte by the parties. Such application may be grounded upon Affidavit or upon oral evidence given by or on behalf of the parties, as the Court may direct, which evidence shall set out the reasons justifying the exemption and the basis upon which it is claimed that the application is in the interests of the parties to the intended civil partnership. Applications under section 48 of the Act

29. Applications pursuant to section 48 of the Act may be made by way of originating Notice of Motion, grounded upon affidavit.

30. For the purposes of rule 29, the notice of motion shall be entitled in the matter of the Act and shall state the relief sought (including whether or not relief pursuant to section 49 of the Act, is sought); state the name and place of residence or address for service of the Applicant; the date upon which it is proposed to apply to the Court for relief and shall be filed in the Office for the County in which the application is being brought in accordance with rule 3 (hereinafter referred to as “the appropriate Office”).

31. For the purposes of rule 29, without prejudice to the jurisdiction of the Court to make an Order for substituted service, the Motion shall be served by registered post on the Respondent at his last-known address or alternatively shall be served personally on the Respondent by any person over the age of eighteen years. Where relief pursuant to section 49 of the Act is sought, the motion shall, in addition to being served on the Respondent, be served upon the trustees of the pension scheme. There must be at least ten clear days between the service of the notice and the day named therein for the hearing of the motion.

32. (1) Subject to the right of the Court to give such directions as it considers appropriate or convenient, evidence at the hearing of the motion under rule 29 shall be by affidavit.

(2) Any affidavit to be used in support of the motion shall be filed in the Office and a copy of any such affidavit shall be served with the notice. Any affidavit to be used in opposition to the application shall be filed in the Office and served upon the Applicant and, where relief pursuant to section 49 of the Act is sought, upon the trustees of the pension scheme by the Respondent following the service on him of the Applicant’s affidavit and any affidavit of representations to be used by the trustees of the pension scheme shall be filed in the appropriate Office and served upon the Applicant and the Respondent.

 

Miscellaneous

33. The plaintiff in proceedings wherein it is sought to have a conveyance declared void pursuant to the provisions of section 28 of the Act shall without delay following the institution of such proceedings cause relevant particulars of the proceedings to be entered as a lis pendens upon the property and/or premises in question under and in accordance with section 121 of the Land and Conveyancing Law Reform Act 2009.

34. A statement as to earnings for the purposes of section 56(1) or section 179(1) of the Act shall be in Form 51B in the Schedule of Forms with the necessary modifications. Such a statement by a maintenance debtor shall be verified on affidavit or on oath at the hearing of the application. Such a statement by an employer need not be verified on affidavit unless so required by the maintenance creditor.

35.^[9] (1) Civil partnership law proceedings for relief under the Domestic Violence Act 2018 shall be brought, heard and determined in accordance with Part VII of Order 59, save that the Domestic Violence Civil Bill shall specify the order or orders sought under the Domestic Violence Act and any orders intended to be sought under section 30, 34 or 45 of the Act.

(2) Civil partnership law proceedings for relief between civil partners under the Partition Act 1868 and the Partition Act 1876, where the fact that they are civil partners of each other is of relevance to the proceedings, shall be brought, heard and determined in accordance with Order 46.

 

Costs

36. (1) The costs as between party and party may be measured by the Judge, and if not so measured shall be taxed, in default of agreement by the parties, by the County Registrar according to such scale of costs as may be prescribed. Any party aggrieved by such taxation may appeal to the Court and have the costs reviewed by it.

(2) Where necessary, the Court may make an order determining who shall bear any costs incurred by trustees of a pension scheme pursuant to section 49, section 125 or section 191 of the Act and in making such determination the Court shall have regard, inter alia, to the representations made by the trustees pursuant to rule 16, if any.

 

General

37. The Court may, upon such terms (if any) as it may think reasonable, enlarge or abridge any of the times fixed by these Rules for taking any step or doing any act in any proceeding, and may also, upon such terms as to costs or otherwise as it shall think fit, declare any step taken or act done to be sufficient, even though not taken or done within the time or in the manner prescribed by these Rules. Service of orders by the registrar of the Court.

38. In all circumstances in which the registrar of the Court and/or the County Registrar is required to serve or lodge a copy of an order upon any person(s) or body such service or lodgment shall be satisfied by the service of a certified copy of the said order by registered post to the said person(s) or body. Case Progression.

39. ^[10][11] Part III of Order 59 shall apply, with the necessary modifications, to civil partnership law proceedings and to cohabitation proceedings, provided that the references in Order 59, rule 65 to a motion for judgment in default in accordance with Order 59, rule 34, and a motion for an order in agreed terms in accordance with Order 59, rule 35, shall in such proceedings be treated as references respectively to a motion for judgment in default in accordance with Order 59A, rule 10(1), and a motion for judgment in agreed terms in accordance with Order 59A, rule 10(6), and the Forms 37L, 37M, 37N, 37W and 37X modified accordingly shall be used in case progression in civil partnership law proceedings and in cohabitation proceedings.