The Reciprocal Enforcement of Maintenance Orders (United States of America) Order 1995

Variation of maintenance order registered in United Kingdom court.

9.—(1) Subject to the provisions of this section—

(a) the registering court shall have the like power, on an application made by the payer or payee under a registered order, to vary the order as if it had been made by the registering court and as if that court had had jurisdiction to make it;

(b) the jurisdiction of a magistrates' court to vary a registered order shall be exercisable notwithstanding that proceedings for the variation of the order are brought by or against a person residing in a specified State.

(1ZA) Where the registering court is a magistrates' court in England and Wales, section 60 of the Magistrates' Courts Act 1980(1) (revocation, variation, etc. of orders for periodical payment) shall have effect in relation to the registered order—

(za) as if in subsection (1) for the words “by order on complaint” there were substituted “on an application being made, by order”;

(a) as if in subsection (3) for the words “paragraphs (a) to (d) of section 59(3) above” there were substituted “subsection (3A) below” and after that subsection there were inserted—

“(3A) The powers of the court are—

(a) the power to order that payments under the order be made directly to the clerk of the court of the clerk of any other magistrates' court;

(b) the power to order that payments under the order be made to the clerk of the court, or to the clerk of any other magistrates' court, by such method of payment falling within section 59(6) above (standing order, etc.) as may be specified;

(c) the power to make an attachment of earnings order under the Attachment of Earnings Act 1971(2) to secure payments under the order.”;

(b) as if in subsection (4) for paragraph (b) there were substituted—

“(b) payments under the order are required to be made to the clerk of the court, or to the clerk of any other magistrates' court, by any method of payment falling within section 59(6) above (standing order, etc.)”,

• and as if after the words “the court” there were inserted “which made the order”;

(c) as if in subsection (5) for the words “to the clerk” there were substituted “in accordance with paragraph (a) of subsection (3A) above”;

(d) as if in subsection (7), paragraph (c) and the word “and” immediately preceding it were omitted;

(e) as if in subsection (8) for the words “paragraphs (a) to (d) of section 59 (3) above” there were substituted “subsection (3A) above”;

(f) as if for subsections (9) and (10) there were substituted the following subsections—

“(9) In deciding, for the purposes of subsections (3) and (8) above, which of the powers under subsection (3A) above it is to exercise, the court shall have regard to any representations made by the debtor.

(10) Subsection (4) of section 59 above (power of court to require debtor to open account) shall apply for the purposes of subsection (3A) above as it applies for the purposes of that section but as if for paragraph (a) there were substituted—

“(a) the court proposes to exercise its power under paragraph (b) of section 60 (3A) below, and”.”

(1ZB) Where the registering court is a court of summary jurisdiction in Northern Ireland, Article 86 of the Magistrates' Courts (Northern Ireland) Order 1981 (revocation, variation, etc. of orders for periodical payment) shall have effect in relation to the registered order—

(a) as if in paragraph (3) for the words “sub-paragraphs (a) to (d) of Article 85(3)” there were substituted “paragraph (3A)” and after that paragraph there were inserted—

“(3A) The powers of the court are—

(a) the power to order that payments under the order be made directly to the collecting officer;

(b) the power to order that payments under the order be made to the collecting officer by such method of payment falling within Article 85(7) (standing order, etc.) as may be specified;

(c) the power to make an attachment of earnings order under Part IX to secure payments under the order.”;

(b) as if in paragraph (4) for sub-paragraph (b) there were substituted—

“(b) payments under the order are required to be made to the collecting officer by any method of payment falling within Article 85(7) (standing order, etc.)”,

• and as if the after words “petty sessions” there were inserted “for the petty sessions district for which the court which made the order acts”;

(c) as if in paragraph (5) for the words “to the collecting officer” there were substituted “in accordance with sub-paragraph (a) of paragraph (3A)”;

(d) as if in paragraph (7), sub-paragraph (c) and the word “and” immediately preceeding it were omitted;

(e) as if in paragraph (8) for the words “sub-paragraphs (a) to (d) of Article 85(3)” there were substituted “paragraph (3A)”;

(f) as if for paragraphs (9) and (10) there were substituted the following paragraphs—

“(9) In deciding, for the purposes of paragraphs (3) and (8) above, which of the powers under paragraph (3A) it is to exercise, the court shall have regard to any representations made by the debtor.

(10) Paragraph (5) of Article 85 (power of court to require debtor to open account) shall apply for the purposes of paragraph (3A) as it applies for the purposes of that Article but as if for sub-paragraph (a) there were substituted—

“(a) the court proposes to exercise its power under sub-paragraph (b) of Article 86(3A), and”.”

(1A) The powers conferred by subsection (1) above are not exercisable in relation to so much of a registered order as provides for the payment of a lump sum.

(1B) The registering court shall not vary a registered order if neither the payer nor the payee under the order is resident in the United Kingdom.

(2) Where an application is made by the payer to a registering court in the United Kingdom for the variation of a registered order, and the payee is residing in a specified State, the prescribed officer of the court shall—

(a) in the case of a court in England and Wales or Northern Ireland, send to the Lord Chancellor, or, in the case of a court in Scotland, send to the Secretary of State, notice of the institution of the proceedings with a view to its being transmitted by him to the appropriate authority in the specified State for service on the payee; and

(b) give the payee notice in writing of the date fixed for the hearing by sending the notice by post addressed to his last known or usual place of abode.

(3) Where such an application is made—

(a) the order shall not be varied unless the document mentioned in paragraph (a) of subsection (2) above has been served on the payee in accordance with the law for the service of such a document in the specified State;

(b) the court, in considering whether or not to make or vary the order, shall take into account any representations made and any evidence adduced by or on behalf of the payee; and

(c) a copy of any such representations and evidence shall be served on the payer by the prescribed officer of the court before the hearing.

(4) Where an application is made by the payee to a registering court in the United Kingdom for the variation of a registered order, and the payer is residing in the United Kingdom, the prescribed officer of the court shall serve the document mentioned in paragraph (a) of subsection (2) above on the payer.

(5) Where a registered order is varied by a registering court in the United Kingdom the prescribed officer of the court shall send the following documents, that is to say—

(a) three certified copies of the order of variation;

(b) a written statement signed by that officer as to whether both the payer and the payee under the order appeared in the proceedings for the variation of the order, and, if only the applicant appeared, the original or a certified copy of a document which establishes that notice of the institution of the proceedings had been served on the other party,

in the case of a court in England and Wales or Northern Ireland, to the Lord Chancellor, or, in the case of a court in Scotland, to the Secretary of State, with a view to their being transmitted by him to the appropriate authority in the specified State.

(6) Where a registered order has been varied by the registering court or by a court in a specified State, the prescribed officer of the registering court shall register the variation order in the prescribed manner.

(7) Where a registered order has been varied by the registering court or by a court in a specified State, the registered order shall, as from the date on which the variation order took effect, have effect as so varied.

(1)

1980 c. 43; section 60 was substituted by section 4 of the Maintenance Enforcement Act 1991 (c. 17).

(2)

1971 c. 32.