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[F1(1)]Where the court makes an order under this Part of this Act 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 [F2(āPā) lacks capacity (within the meaning of the Mental Capacity Act 2005) in relation to the provisions of the order] then, subject to any order, direction or authority made or given in relation to [F3P under that Act], the court may order the payments to be made, or as the case may be, the property to be transferred, to [F4 such person (āDā) as it may direct].
[F5(2)In carrying out any functions of his in relation to an order made under subsection (1), D must act in P's best interests (within the meaning of that Act).]
Textual Amendments
F1S. 40 renumbered (1.10.2007) as s. 40(1) by Mental Capacity Act 2005 (c. 9), ss. 67(1), 68, Sch. 6 para. 19 (with ss. 27-29, 62); S.I. 2007/1897, art. 2(1)(d)
F2Words in s. 40(1) substituted (1.10.2007) by Mental Capacity Act 2005 (c. 9), ss. 67(1), 68, Sch. 6 para. 19(a) (with ss. 27-29, 62); S.I. 2007/1897, art. 2(1)(d)
F3Words in s. 40(1) substituted (1.10.2007) by Mental Capacity Act 2005 (c. 9), ss. 67(1), 68, Sch. 6 para. 19(b) (with ss. 27-29, 62); S.I. 2007/1897, art. 2(1)(d)
F4Words in s. 40(1) substituted (1.10.2007) by Mental Capacity Act 2005 (c. 9), ss. 67(1), 68, Sch. 6 para. 19(c) (with ss. 27-29, 62); S.I. 2007/1897, art. 2(1)(d)
F5S. 40(2) inserted (1.10.2007) by Mental Capacity Act 2005 (c. 9), ss. 67(1), 68, Sch. 6 para. 19(d) (with ss. 27-29, 62); S.I. 2007/1897, art. 2(1)(d)
Modifications etc. (not altering text)
C1S. 40 extended by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), ss. 21(k), 48(2)