Part IIU.K. Reciprocal Enforcement of Claims for the Recovery of Maintenance

Modifications etc. (not altering text)

C1Pt. II (ss. 25-39) applied (with modifications) (5.4.1993) by The Recovery of Maintenance (United States of America) Order 1993 (S.I. 1993/591), art.3(1)

C3Pt. II applied (with modifications) (1.10.2007) by The Recovery of Maintenance (United States of America) Order 2007 (S.I. 2007/2006), arts. 1(2), 3 (with arts. 4, 5) (as amended by S.I. 2014/879, arts. 1(1), 118)

Convention countriesU.K.

25 Convention countries.U.K.

(1)Her Majesty may by Order in Council declare that any country or territory specified in the Order, being a country or territory outside the United Kingdom to which the Maintenance Convention extends, is a convention country for the purposes of this Part of this Act.

(2)In this section “the Maintenance Convention” means the United Nations Convention on the Recovery Abroad of Maintenance done at New York on 20th June 1956.

Application by person in the United Kingdom for recovery, etc. of maintenance in convention countryU.K.

26 Application by person in United Kingdom for recovery, etc. of maintenance in convention country.U.K.

(1)Where a person in the United Kingdom (“the applicant”) claims to be entitled to recover in a convention country maintenance from another person, and that other person is for the time being subject to the jurisdiction of that country, the applicant may apply to the Secretary of State, in accordance with the provisions of this section, to have his claim for the recovery of maintenance from that other person transmitted to that country.

(2)Where the applicant seeks to vary any provision made in a convention country for the payment by any other person of maintenance to the applicant, and that other person is for the time being subject to the jurisdiction of that country, the applicant may apply to the Secretary of State, in accordance with the provisions of this section, to have his application for the variation of that provision transmitted to that country.

(3)An application to the Secretary of State under subsection (1) or (2) above shall be made through the appropriate officer, and that officer shall assist the applicant in completing an application which will comply with the requirements of the law applied by the convention country and shall send the application to the Secretary of State, together with such other documents, if any, as are required by that law.

[F1(3A)An application under subsection (1) or (2) above, for the purpose of recovering maintenance from a person in a specified State within the meaning of the Recovery of Maintenance (United States of America) Order 1993, and a certificate signed by a justice of the peace or, where the applicant is residing in Scotland, the sheriff, to the effect that the application sets forthfacts from which it may be determined that the repondent owes a duty to maintain the applicant and any other person named in the application and that a court in the specified State may obtain jurisdiction of the respondent or his property, shall be registered in the court in the prescribed manner by the appropriate officer or, in Scotland, by the sheriff clerk in the Maintenance Orders (Reciprocal Enforcement) Act 1972 register.]

(4)On receiving an application from the appropriate officer the Secretary of State shall transmit it, together with any accompanying documents, to the appropriate authority in the convention country, unless he is satisfied that the application is not made in good faith or that it does not comply with the requirements of the law applied by that country.

(5)The Secretary of State may request the appropriate officer to obtain from the court of which he is an officer such information relating to the application as may be specified in the request, and it shall be the duty of the court to furnish the Secretary of State with the information he requires.

[F2(6)The appropriate officer for the purposes of this section is—

(a)where the applicant is residing in England and Wales, [F3an officer of the family court ];

(b)where the applicant is residing in Northern Ireland, the clerk [F4of petty sessions] ; and

(c)where the applicant is residing in Scotland, the sheriff clerk or sheriff clerk depute of the sheriff court within the jurisdiction of which the applicant is residing.]

Textual Amendments

F1S. 26(3A) inserted (5.4.1993) by virtue of S.I. 1993/591, arts. 3(2), 4(a)

F2S. 26(6) substituted for s. 26(6)(7) (1.4.2001) by 1999 c. 22, s. 90, Sch 13 para. 76 (Sch. 14 para 7(2)); S.I. 2001/916, art. 2(a)(ii)

F3Words in s. 26(6)(a) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 42; S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

Application by person in convention country for recovery of maintenance in England, Wales or Northern IrelandU.K.

[F527A Applications for recovery of maintenance in England and Wales.U.K.

(1)This section applies to any application which—

(a)is received by the Lord Chancellor from the appropriate authority in a convention country, and

(b)is an application by a person in that country for the recovery of maintenance from another person who is for the time being residing in England and Wales.

(2)Subject to sections 27B to 28B of this Act, an application to which this section applies shall be treated for the purposes of any enactment as if it were an application for a maintenance order under the relevant Act, made at the time when the application was received by the Lord Chancellor.

[F6This subsection does not confer jurisdiction on a court in England and Wales that it would not otherwise have.]

(3)In the case of an application for maintenance for a child (or children) alone, the relevant Act is the Children Act 1989.

(4)In any other case, the relevant Act is the Domestic Proceedings and Magistrates’ Courts Act 1978.

(5)In subsection (3) above, “child” means the same as in Schedule 1 to the Children Act 1989.]

Textual Amendments

F827B Sending application to the [F7family] court.U.K.

(1)On receipt of an application to which section 27A of this Act applies, the Lord Chancellor shall send it, together with any accompanying documents, to the [F9family court].

(2)[F10If] notice of the hearing of the application by [F11the family court] cannot be duly served on the respondent, the [F12family] court shall return the application and the accompanying documents to the Lord Chancellor with a statement giving such information as [F13the family court] possesses as to the whereabouts of the respondent.

(3)If the application is returned to the Lord Chancellor under subsection (2) above, then, unless he is satisfied that the respondent is not residing in the United Kingdom, he shall deal with it in accordance with subsection (1) above or section [F1428D(1)] of this Act or send it to the Secretary of State to be dealt with in accordance with section 31 of this Act (as the circumstances of the case require).

F15(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F7Word in s. 27B heading substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 43(d); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F9Words in s. 27B(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 43(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F10Word in s. 27B(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 43(b)(i); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F11Words in s. 27B(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 43(b)(ii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F12Word in s. 27B(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 43(b)(iii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F13Words in s. 27B(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 43(b)(iv); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F14Word in s. 27B(3) substituted (4.11.1996) by S.I. 1995/756, art. 8; S.R. 1996/297, art. 3

F15S. 27B(4)(5) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 43(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F1627C Applications to which section 27A applies: general.U.K.

(1)This section applies where [F17the family] court makes an order on an application to which section 27A of this Act applies.

F18(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The court [F19may], at the same time that it makes the order, exercise one of its powers under subsection (4) below.

(4)Those powers are—

(a)the power to order that payments under the order be made directly to [F20the court];

(b)the power to order that payments under the order be made to [F20the court], by such method of payment falling within section [F211(5) of the Maintenance Enforcement Act 1991] (standing order, etc.) as may be specified;

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

(5)In deciding [F22whether to exercise any of its] powers under subsection (4) above F23... , the court shall have regard to any representations made by the person liable to make payments under the order.

(6)[F24Subsection (6) of section 1 of the Maintenance Enforcement Act 1991] (power of court to require debtor to open account) shall apply for the purposes of subsection (4) 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 27C(4) of the Maintenance Orders (Reciprocal Enforcement) Act 1972, and”.

(7)The F25... court shall register the order in the prescribed manner F26... .

Textual Amendments

F17Words in s. 27C(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F18S. 27C(2) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F19Word in s. 27C(3) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F20Words in s. 27C(4)(a)(b) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(d)(i); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F21Words in s. 27C(4)(b) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(d)(ii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F22Words in s. 27C(5) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(e)(i); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F23Words in s. 27C(5) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(e)(ii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F24Words in s. 27C(6) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(f); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F25Words in s. 27C(7) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(g)(i); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F26Words in s. 27C(7) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 44(g)(ii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F2728 Applications by spouses under the Domestic Proceedings and Magistrates’ Courts Act 1978.U.K.

(1)[F28On] hearing an application which by virtue of section 27A of this Act is to be treated as if it were an application for a maintenance order under the Domestic Proceedings and Magistrates’ Courts Act 1978[F29, the family court] may make any order on the application which it has power to make under section 2 or 19(1) of that Act.

(2)Part I of that Act shall apply in relation to such an application, and to any order made on such an application, with the following modifications—

(a)sections 6 to 8, 16 to 18, 20ZA, 25[F30, 26] and 28(2) shall be omitted,

(b)F31... and

(c)section 32(2) shall be omitted.

(3)Subsections (1) and (2) above do not apply where section 28A of this Act applies.

Textual Amendments

F27Ss. 27A-28C substituted (5.4.1993) for ss. 27, 28, 28A by Maintenance Orders (Reciprocal Enforcement) Act 1992 (c. 56), s.1, Sch. 1 Pt. II para.13, S.I. 1993/618, art.2

F28Word in s. 28(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 45(a)(i); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F29Words in s. 28(1) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 45(a)(ii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F30Word in s. 28(2)(a) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 45(b)(i); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F31S. 28(2)(b) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 45(b)(ii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F3228AApplications by former spouses under the Domestic Proceedings and Magistrates’ Courts Act 1978.U.K.

(1)This section applies where in the case of any application which by virtue of section 27A of this Act is to be treated as if it were an application for a maintenance order under the Domestic Proceedings and Magistrates’ Courts Act 1978 (“the 1978 Act”)—

(a)the applicant and respondent were formerly married,

(b)their marriage was dissolved or annulled in a country or territory outside the United Kingdom by a divorce or annulment which is recognised as valid by the law of England and Wales,

(c)an order for the payment of maintenance for the benefit of the applicant or a child of the family has, by reason of the divorce or annulment, been made by a court in a convention country, and

(d)where the order for the payment of maintenance was made by a court of a different country from that in which the divorce or annulment was obtained, either the applicant or the respondent was resident in the convention country whose court made that order at the time that order was applied for.

(2)[F33The family court shall have jurisdiction to hear the application] notwithstanding the dissolution or annulment of the marriage.

(3)If the [F34family court] is satisfied that the respondent has failed to comply with the provisions of any order such as is mentioned in subsection (1)(c) above, it may (subject to subsections (4) and (5) below) make any order which it has power to make under section 2 or 19(1) of the 1978 Act.

(4)The court shall not make an order for the making of periodical payments for the benefit of the applicant or any child of the family unless the order made in the convention country provides for the making of periodical payments for the benefit of the applicant or, as the case may be, that child.

(5)The court shall not make an order for the payment of a lump sum for the benefit of the applicant or any child of the family unless the order made in the convention country provides for the payment of a lump sum to the applicant or, as the case may be, to that child.

(6)Part I of the 1978 Act shall apply in relation to the application, and to any order made on the application, with the following modifications—

(a)section 1 shall be omitted,

(b)for the reference in section 2(1) to any ground mentioned in section 1 of that Act there shall be substituted a reference to non-compliance with any such order as is mentioned in subsection (1)(c) of this section,

(c)for the references in section 3(2) and (3) to the occurrence of the conduct which is alleged as the ground of the application there shall be substituted references to the breakdown of the marriage,

(d)the reference in section 4(2) to the subsequent dissolution or annulment of the marriage of the parties affected by the order shall be omitted,

(e)sections 6 to 8, 16 to 18, 20ZA [F3525, 26 and 28] shall be omitted,

(f)F36... and

(g)section 32(2) shall be omitted.

(7)A divorce or annulment obtained in a country or territory outside the United Kingdom shall be presumed for the purposes of this section to be one the validity of which is recognised by the law of England and Wales, unless the contrary is proved by the respondent.

(8)In this section, “child of the family” has the meaning given in section 88 of the 1978 Act.

Textual Amendments

F33Words in s. 28A(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 46(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F34Words in s. 28A(3) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 46(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F35Words in s. 28A(6)(e) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 46(c)(i); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F36S. 28A(6)(f) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 46(c)(ii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F3728B Applications under the Children Act 1989.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F37S. 28B repealed (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 47; S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F38[28C Applications for recovery of maintenance in Northern Ireland.U.K.

(1)This section applies to any application which—

(a)is received by the Lord Chancellor from the appropriate authority in a convention country, and

(b)is an application by a person in that country for the recovery of maintenance from another person who is for the time being residing in Northern Ireland.

(2)Subject to sections 28D to 29B of this Act, an application to which this section applies shall be treated for the purposes of any enactment as if it were an application for a maintenance order under the relevant Order, made at the time when the application was received by the Lord Chancellor.

[F39This subsection does not confer jurisdiction on a court in Northern Ireland that it would not otherwise have.]

(3)In the case of an application for maintenance for a child (or children) alone, the relevant Order is the Children (Northern Ireland) Order 1995.

(4)In any other case, the relevant Order is the Domestic Proceedings (Northern Ireland) Order 1980.

(5)In subsection (3) above, “child” means the same as in Schedule 1 to the Children (Northern Ireland) Order 1995.]

Textual Amendments

F38Ss. 28C, 28D, 28E, 29, 29A, 29B substituted for ss. 28C, 29, 29A (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 72 (with Sch. 8 para. 1(1)); S.R. 1996/297, art. 2(2)

F40[28D Sending application to the appropriate magistrates’ court.U.K.

(1)On receipt of an application to which section 28C of this Act applies, the Lord Chancellor shall send it, together with any accompanying documents, to the clerk of a magistrates’ court F41....

(2)Subject to subsection (4) below, if notice of the hearing of the application by a magistrates’ court having jurisdiction to hear it cannot be duly served on the respondent, the clerk of the court shall return the application and the accompanying documents to the Lord Chancellor with a statement giving such information as he possesses as to the whereabouts of the respondent.

(3)If the application is returned to the Lord Chancellor under subsection (2) above, then, unless he is satisfied that the respondent is not residing in the United Kingdom, he shall deal with it in accordance with subsection (1) above or section 27B of this Act or send it to the Secretary of State to be dealt with in accordance with section 31 of this Act (as the circumstances of the case require).

F42(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F42(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F40Ss. 28C, 28D, 28E, 29, 29A, 29B substituted for ss. 28C, 29, 29A (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 72 (with Sch. 8 para. 1(1)); S.R. 1996/297, art. 2(2)

F43[28E Applications to which section 28C applies: general.U.K.

(1)This section applies where a magistrates’ court makes an order on an application to which section 28C of this Act applies.

(2)Article 85 of the Magistrates’ Courts (Northern Ireland) Order 1981 (“the 1981 Order”) (orders for periodical payment: means of payment) shall not apply.

(3)The court shall, at the same time that it makes the order, exercise one of its powers under subsection (4) below.

(4)Those powers 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) of the 1981 Order (standing order, etc.) as may be specified;

(c)the power to make an attachment of earnings order under Part IX of the 1981 Order to secure payments under the order;

and in this subsection “collecting officer” means the officer mentioned in Article 85(4) of the 1981 Order.

(5)In deciding which of the powers under subsection (4) above it is to exercise, the court shall have regard to any representations made by the person liable to make payments under the order.

(6)Paragraph (5) of Article 85 of the 1981 Order (power of court to require debtor to open account) shall apply for the purposes of subsection (4) above 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 paragraph (b) of section 28E(4) of the Maintenance Orders (Reciprocal Enforcement) Act 1972, and.

(7)The clerk of the court shall register the order in the prescribed manner in the court.]

Textual Amendments

F43Ss. 28C, 28D, 28E, 29, 29A, 29B substituted for ss. 28C, 29, 29A (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 72 (with Sch. 8 para. 1(1)); S.R. 1996/297, art. 2(2)

F44[29 Applications by spouses under the Domestic Proceedings (Northern Ireland) Order 1980.U.K.

(1)The magistrates’ court hearing an application which by virtue of section 28C of this Act is to be treated as if it were an application for a maintenance order under the Domestic Proceedings (Northern Ireland) Order 1980 may make any order on the application which it has power to make under Article 4 or 20(1) of that Order.

(2)That Order shall apply in relation to such an application, and to any order made on such an application, with the following omissions—

(a)Articles 8 to 10, 18, 19, 21, 22A, 25(1), 27 to 29 and 30(1A),

(b)in Article 32(1) the words “either the applicant or”, and

(c)Article 36(1).

(3)Subsections (1) and (2) above do not apply where section 29A of this Act applies.]

Textual Amendments

F44Ss. 28C, 28D, 28E, 29, 29A, 29B substituted for ss. 28C, 29, 29A (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 72 (with Sch. 8 para. 1(1)); S.R. 1996/297, art. 2(2)

F45[29A Applications by former spouses under the Domestic Proceedings (Northern Ireland) Order 1980.U.K.

(1)This section applies where in the case of any application which by virtue of section 28C of this Act is to be treated as if it were an application for a maintenance order under the Domestic Proceedings (Northern Ireland) Order 1980 (“the 1980 Order”)—

(a)the applicant and respondent were formerly married,

(b)their marriage was dissolved or annulled in a country or territory outside the United Kingdom by a divorce or annulment which is recognised as valid by the law of Northern Ireland;

(c)an order for the payment of maintenance for the benefit of the applicant or a child of the family has, by reason of the divorce or annulment, been made by a court in a convention country, and

(d)where the order for the payment of maintenance was made by a court of a different country from that in which the divorce or annulment was obtained, either the applicant or the respondent was resident in the convention country whose court made that order at the time that order was applied for.

(2)Any magistrates’ court that would have jurisdiction to hear the application under Article 32 of the 1980 Order (as modified in accordance with subsection (6) below) if the applicant and the respondent were still married shall have jurisdiction to hear it notwithstanding the dissolution or annulment of the marriage.

(3)If the magistrates’ court hearing the application is satisfied that the respondent has failed to comply with the provisions of any order such as is mentioned in subsection (1)(c) above, it may (subject to subsections (4) and (5) below) make any order which it has power to make under Article 4 or 20(1) of the 1980 Order.

(4)The court shall not make an order for the making of periodical payments for the benefit of the applicant or any child of the family unless the order made in the convention country provides for the making of periodical payments for the benefit of the applicant or, as the case may be, that child.

(5)The court shall not make an order for the payment of a lump sum for the benefit of the applicant or any child of the family unless the order made in the convention country provides for the payment of a lump sum to the applicant or, as the case may be, to that child.

(6)The 1980 Order shall apply in relation to the application, and to any order made on the application, with the following modifications—

(a)Article 3 shall be omitted,

(b)for the reference in Article 4(1) to any ground mentioned in Article 3 there shall be substituted a reference to non-compliance with any such order as is mentioned in subsection (1)(c) of this section,

(c)for the references in Article 5(2) and (3) to the occurrence of the conduct which is alleged as the ground of the application there shall be substituted references to the breakdown of the marriage,

(d)the reference in Article 6(2) to the subsequent dissolution or annulment of the marriage of the parties affected by the order shall be omitted,

(e)Articles 8 to 10, 18, 19, 21, 22A, 25(1) and 27 to 30 shall be omitted,

(f)in Article 32(1), the words “either the applicant or” shall be omitted, and

(g)Article 36(1) shall be omitted.

(7)A divorce or annulment obtained in a country or territory outside the United Kingdom shall be presumed for the purposes of this section to be one the validity of which is recognised by the law of Northern Ireland, unless the contrary is proved by the respondent.

(8)In this section “child of the family” has the meaning given in Article 2(2) of the 1980 Order.]

Textual Amendments

F45Ss. 28C, 28D, 28E, 29, 29A, 29B substituted for ss. 28C, 29, 29A (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 72 (with Sch. 8 para. 1(1)); S.R. 1996/297, art. 2(2)

F46[29B Applications under the Children (Northern Ireland) Order 1995.U.K.

No provision of an order made under Schedule 7 to the Children (Northern Ireland) Order 1995 requiring or enabling a court to transfer proceedings from a magistrates’ court to a county court or the High Court shall apply in relation to an application which by virtue of section 28C of this Act is to be treated as if it were an application for a maintenance order under that Order.]

Textual Amendments

F46Ss. 28C, 28D, 28E, 29, 29A, 29B substituted for ss. 28C, 29, 29A (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 72 (with Sch. 8 para. 1(1)); S.R. 1996/297, art. 2(2)

30 Further provisions relating to recovery in England, Wales and Northern Ireland of maintenance for childrenU.K.

.

F47(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F47(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F48(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F48(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F48(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F47(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F48S. 30(3)(4)(5) repealed (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(2), Sch. 10 (with Sch. 8 paras. 1(1), 23(4)); S.R. 1996/297, art. 2(2)

Application by person in convention country for recovery of maintenance in ScotlandU.K.

31 Application by person in convention country for recovery of maintenance in Scotland.U.K.

(1)Where the Secretary of State receives from the appropriate authority in a convention country an application by a person in that country for the recovery of maintenance from another person who is for the time being residing in Scotland, he shall send the application, together with any accompanying documents, to the [F49Secretary of the Law Society of Scotland who shall send the application and any accompanying documents to a solicitor practising in the sheriff court within the jurisdiction of which that other person resides or to such other solicitor practising in Scotland as appears to the Secretary to be appropriate, for the purposes of enabling the solicitor to take] on behalf of the applicant such steps as appear to the solicitor appropriate in respect of the application.

[F50(1A)Proceedings arising out of an application under subsection (1) above shall be treated as an action for aliment within the meaning of the Family Law (Scotland) Act 1985 and, subject to subsections (1B) to (1D) below, the provisions of that Act relating to aliment shall apply in relation to claims for maintenance in such proceedings and decrees therein.

(1B)Without prejudice to subsection (2) below, any proceedings mentioned in subsection (1A) above shall be brought in the sheriff court.

(1C)In its application to proceedings mentioned in subsection (1A) above, section 5 of the said Act of 1985 (power to vary or recall decree of aliment) shall be subject to section 34(1) of this Act.

(1D)Where an application under subsection (1) above is for the recovery of maintenance from a person who is a former spouse of the applicant—

(a)then, for the purposes of the said Act of 1985, there shall be assumed to be an obligation of aliment within the meaning of that Act owed by the former spouse to the applicant;

(b)section 2(7) and (8) of that Act shall not apply; and

(c)an order for payment of maintenance in proceedings arising out of the application—

(i)shall, if subsisting at the death of the party making the payment, continue to operate against that party’s estate, but without prejudice to the power of the court to vary or recall the order; and

(ii)shall cease to have effect on the remarriage or death of the party receiving payment, except in relation to any arrears due under it]

(2)Where in any proceedings arising out of such an application as aforesaid the sheriff [F51,or (on appeal or remit) the Court of Session,] makes an order containing a provision requiring the payment of maintenance, [F52the order shall be registered forthwith in the prescribed manner in the appropriate sheriff court by the sheriff clerk or sheriff clerk depute of that sheriff court; and where an order of the Court of Session varies or revokes a registered order of the sheriff, the said sheriff clerk or sheriff clerk depute shall amend the register accordingly.]

[F53(2A)In subsection (2) above “the appropriate sheriff court” means the sheriff court making the order or (where the order is an order of the Court of Session) from which the remit or appeal has come.]

(3)Without prejudice to the generality of the powers conferred on the Court of Session by section 32 of the M1Sheriff Courts (Scotland) Act 1971 to regulate by act of sederunt the procedure of the sheriff court, the said powers shall include power to prescribe the decrees granted, or other things done, by the sheriff, or an officer of the sheriff court, under this Part of this Act, notice of which is to be given to such persons as the act of sederunt may provide and the manner in which such notice shall be given.

[F54(4)Where an application under subsection (1) above is for the recovery of maintenance from a person who is a former spouse of the applicant an order containing a provision requiring the payment of such maintenance for the benefit of the applicant shall not be made in respect of that application unless—

(i)the marriage between the applicant and the said former spouse has been dissolved by a divorce which has been [F55granted in a convention country][F55obtained in a convention country or territory outside the United Kingdom] and which is recognised as valid by the law of Scotland;

[F56(ii)an order for the payment of maintenance for the benefit of the applicant has, in or by reason of the divorce proceedings in the convention country, been made by the court which granted the divorce or by any other court in that country; and]

[F56(ii)an order for the payment of maintenance for the benefit of the applicant as a divorced person has, in or by reason of, or subsequent to, the divorce proceedings, been made by a court in a convention country;

(iia)in a case where the order mentioned in paragraph (ii) above was made by a court of a different country from that in which the divorce was obtained, either the applicant or the said former spouse was resident in that different country at the time the application for the order so mentioned was made; and]

(iii)the court making the order under this section is satisfied that the former spouse of the applicant has failed to comply with the order mentioned in paragraph (ii) above.

[F57(4A)In subsection (4)(i) above the reference to the dissolution of a marriage by divorce shall be construed as including a reference to the annulment of a purported marriage and any reference to a marriage, a divorce, a divorced person, a former spouse or divorce proceedings shall be construed accordingly.]

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F58

(6)Section 8 of the M2Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (which relates to the variation and recall by the sheriff of certain orders made by the Court of Session) shall not apply to an order of the Court of Session registered under subsection (2) above.]

Textual Amendments

F50S. 31(1A)–(1D) substituted for subsection (1A) by Family Law (Scotland) Act 1985 (c. 37, SIF 49:3), ss. 28(1), 29(4), Sch. 1 para. 6

F55Words commencing “obtained in a” substituted (S.) for words commencing “granted in a” by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), ss. 31(2), 48(2)

F56S. 31(4)(ii)(iia) substituted (S.) for para. (ii) by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), s. 31(3)

Marginal Citations

Transfer, enforcement, variation and revocation of registered ordersU.K.

32 Transfer of orders.U.K.

(1)Where the prescribed officer of the registering court is of opinion that the payer under a registered order has ceased to reside within the jurisdiction of that court, then, unless he is of opinion that the payer has ceased to reside in the United Kingdom, he shall, subject to subsection (2) below, send a certified copy of the order and the related documents to the Secretary of State, and if he is of opinion that the payer has ceased to reside in the United Kingdom he shall send a notice to that effect to the Secretary of State.

(2)Where [F59the clerk] of the registering court, being a magistrates’ court [F60in Northern Ireland], is of opinion that the payer is residing within the jurisdiction of another magistrates’ court in [F61Northern Ireland], he shall transfer the order to that other court by sending a certified copy of the order and the related documents to [F59the clerk] of that other court and, subject to subsection (4) below, [F62that clerk] shall register the order in the prescribed manner in that court.

F63(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Where a certified copy of an order is received by the Secretary of State under this section and it appears to him that the payer under the order is still residing in the United Kingdom, he shall transfer the order to the appropriate court by sending the copy of the order and the related documents to the prescribed officer of the appropriate court and, subject to subsection (4) below, that officer shall register the order in the prescribed manner in that court.

(4)Before registering an order in pursuance of subsection (2) or (3) above an officer of a court shall take such steps as he thinks fit for the purpose of ascertaining whether the payer under the order is residing within the jurisdiction of the court, and if after taking those steps he is satisfied that the payer is not so residing he shall return the certified copy of the order and the related documents to the officer of the court or the Secretary of State, as the case may be, from whom he received them, together with a statement giving such information as he possesses as to the whereabouts of the payer.

(5)Where a certified copy of an order is received by the Secretary of State under this section and it appears to him that the payer under the order has ceased to reside in the United Kingdom he shall return the copy of the order and the related documents to the registering court.

(6)An officer of a court on registering an order in the court in pursuance of subsection (2) or (3) above shall give notice of the registration in the prescribed manner to the prescribed officer of the court in which immediately before its registration under this section the order was registered.

(7)The officer to whom notice is given under subsection (6) above shall on receiving the notice cancel the registration of the order in that court.

[F64(7A)The Secretary of State on receiving notice under subsection (6) above shall send a copy of the registered order and of the related documents to the Secretary of the Law Society of Scotland who shall send the copy of the order and of the related documents to a solicitor practising in the registering court or to such other solicitor practising in Scotland as appears to the Secretary to be appropriate for the purpose of enabling the solicitor to take, on behalf of the person entitled to the payments for which the order provides, such steps as appear to the solicitor appropriate to enforce the order.

(7B)Where an order is registered in the sheriff court by virtue of subsection (3) above, any provision of the order by virtue of which the payments for which the order provides are required to be made through or to any officer or person on behalf of the person entitled thereto shall be of no effect so long as the order is so registered.]

(8)In this section—

(a)the application on which the order was made;

(b)a certificate of arrears signed by the prescribed officer of the registering court;

(c)a statement giving such information as he possesses as to the whereabouts of the payer; and

(d)any relevant documents in his possession relating to the case.

(9)In the application of this section to Scotland—

(a)in subsection (1), for the words “within the jurisdiction of that court” there shall be substituted the words “in Scotland”;

(b)subsection (2) shall be omitted;

(c)in subsection (4), for the words “the officer of the court or the Secretary of State, as the case may be, from whom he received them” there shall be substituted the words “the Secretary of State”;

(d)at the end of subsection (6) there shall be inserted the words “and to the Secretary of State”;

[F67(e)after subsection (7) there shall be inserted the following subsections:—

“(7A)The Secretary of State on receiving notice under subsection (6) above shall send a copy of the registered order and of the related documents to the secretary of the committee mentioned in section 31(1) of this Act, and the secretary shall thereupon send the copy of the order and of the related documents to a solicitor practising in the registering court, with a view to the solicitor’s taking on behalf of the person entitled to the payments for which the order provides such steps as appear to the solicitor appropriate to enforce the order.

(7B)Where an order is registered in the sheriff court by virtue of subsection (3) above, any provision of the order by virtue of which the payments for which the order provides are required to be made through or to any officer or person on behalf of the person entitled thereto shall be of no effect so long as the order is so registered”;]

(f)“appropriate court”, in relation to a person residing in Scotland, means the sheriff court within the jurisdiction of which that person is residing.

Textual Amendments

F59Words in s. 32(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 48(2)(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F60Words in s. 32(2) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 48(2)(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F61Words in s. 32(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 48(2)(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F62Words in s. 32(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 48(2)(d); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F63S. 32(2A) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 48(3); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F65Words in s. 32(8) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 48(4)(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F66Words in s. 32(8) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 48(4)(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F67 S. 32(9)( e ) repealed (S.) by Legal Aid (Scotland) Act 1986 (c. 47, SIF 77:2) , ss. 45 , 46(4) , Sch. 3 para. 1(2) ( b ), Sch. 5

33 Enforcement of orders.U.K.

(1)Subject to subsection (2) below, a registered order which is registered in a court other than the court by which the order was made may be enforced as if it had been made by the registering court and as if that court had had jurisdiction to make it; and proceedings for or with respect to the enforcement of any such order may be taken in accordance with this subsection but not otherwise.

(2)Subsection (1) above does not apply to an order which is for the time being registered F68... in the High Court of Justice in Northern Ireland under Part II of the M3Maintenance and Affiliation Orders Act (Northern Ireland) 1966.

(3)[F69An order which by virtue of subsection (1) above is enforceable by a magistrates’ court [F70shall, subject to the modifications of Article 98 of the Magistrates’ Courts (Northern Ireland) Order 1981 (enforcement of sums adjudged to be paid and complaint for arrears) specified in subsection (4C) of section 8 of this Act, be enforceable] as [F71an order made by that court to which that Article applies].]

F72(3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F73(3B)Where, by virtue of being registered in the court of summary jurisdiction [F74in Northern Ireland] in which it was made, a registered order is enforceable as a maintenance order made by a court of summary jurisdiction, Article 98 of the Magistrates’ Courts (Northern Ireland) Order 1981 shall have effect subject to the modifications specified in subsection (4C) of section 8 of this Act.]

(4)A magistrates’ court [F75in Northern Ireland] in which an order is registered under this Part of this Act, and the officers thereof, shall take all such steps for enforcing the order as may be prescribed.

(5)In any proceedings for or with respect to the enforcement of an order which is for the time being registered in any court under this Part of this Act a certificate of arrears sent under section 32 of this Act to the prescribed officer of the court shall be evidence of the facts stated therein.

(6)Part II of the M4Maintenance Orders Act 1950 (enforcement of certain orders throughout the United Kingdom) shall not apply to a registered order.

(7)In the application of this section to Scotland—

(a)subsections (2) to (4) shall be omitted; and

(b)in subsection (5), for the word “evidence” there shall be substituted the words “sufficient evidence”.

Textual Amendments

F69S. 33(3) omitted (E.W.) (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 49(a) (with s. 61(13)(f)); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F70Words in s. 33(3) substituted (N.I.) (4.11.1996) by S.I. 1993/1576 (N.I. 6), art. 11, Sch. 1 para. 13(a); S.R. 1996/454, art. 3

F71Words in s. 33(3) substituted (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 73 (with Sch. 8 para. 1(1)); S.R. 1996/297, art. 2(2)

F72S. 33(3A) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 49(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F73S. 33(3B) inserted (N.I.) (4.11.1996) by S.I. 1993/1576 (N.I. 6), art. 11, Sch. 1 para. 13(b); S.R. 1996/454, art. 3

F74Words in s. 33(3B) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 49(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F75Words in s. 33(4) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 49(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

Modifications etc. (not altering text)

Marginal Citations

34 Variation and revocation of orders.U.K.

(1)[F76Subject to [F77subsection (3B) below and] section 34B of this Act][F78Subject to F79... section 34A of this Act] where a registered order is registered in a court other than the court by which the order was made, the registering court shall have the like power to vary or revoke the order as if it had been made by the registering court and as if that court had had jurisdiction to make it; and no court other than the registering court shall have power to vary or revoke a registered order.

(2)Where the registering court revokes a registered order it shall cancel the registration.

(3)Where the Secretary of State receives from the appropriate authority in a convention country an application by a person in that country for the variation of a registered order, he [F80shall—

(a)if the registering court is the family court, send the application together with any documents accompanying it to that court;

(b)if the registering court is a magistrates' court in Northern Ireland, send the application together with any documents accompanying it to the clerk of that court.]

F81(3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F82(3B) Where paragraph (1) of Article 86 of the Magistrates’ Courts (Northern Ireland) Order 1981 (revocation, variation etc. of orders for periodical payment) applies in relation to a registered order, that paragraph shall have effect as if for the words “by order on complaint,” there were substituted “on an application being made, by order”. ]

(4)Where a court in a part of the United Kingdom makes, or refuses to make, an order varying or revoking a registered order made by a court in another part thereof, any person shall have the like right of appeal (if any) against the order or refusal as he would have if the registered order had been made by the first-mentioned court.

(5)In the application of this section to Scotland—

[F83(a) the words “and no court other than the registering court shall have power to vary or revoke a registered order ” in subsection (1) above are subject to any power of the Court of Session on appeal; and ]

[F84(b)for subsection (3) there shall be substituted the following subsection—

“(3)Where the Secretary of State receives from the appropriate authority in a convention country an application by a person in that country for the variation of a registered order, he shall, if the registering court is a sheriff court, send the application, together with any documents accompanying it, to the Secretary of the Law Society of Scotland who shall send the application and any accompanying documents to a solicitor practising in the registering court or to such other solicitor practising in Scotland as appears to the Secretary to be appropriate, for the purpose of enabling the solicitor to take on behalf of the applicant such steps as appear to the solicitor appropriate in respect of the application.”]

Textual Amendments

F76Words in s. 34(1) inserted (N.I.) (4.11.1996) by S.I. 1993/1576 (N.I. 6), art. 11, Sch. 1 para. 14(a); S.R. 1996/454, art. 3

F77Words in s. 34(1) inserted (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 74(1) (with Sch. 8 para. 1(1)); S.R. 1996/297, art. 2(2)

F78Words in s. 34(1) inserted (E.W.) (1.4.1992) by Maintenance Enforcement Act 1991 (c. 17), s. 10, Sch. 1 para. 19(1), S.I. 1992/455, art. 2

F79Words in s. 34(1) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 50(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F80Words in s. 34(3) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 50(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F81S. 34(3A) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 50(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

[F85 34A Variation of orders by [F86the family court] in England and Wales.E+W

(1)The provisions of this section shall have effect in relation to a registered order which is registered in [F87the family court] (whether or not the court made the order) in place of the following enactments, that is to say—

[F88(a)section 1(3A) of the Maintenance Enforcement Act 1991;]

(b) section 20ZA of the M5 Domestic Proceedings and Magistrates’ Courts Act 1978; and

(c) paragraph 6A of Schedule 1 to the M6 Children Act 1989.

(2)The power of [F89the family court] to vary a registered order shall include power, if the court is satisfied that payment has not been made in accordance with the order, to exercise one of its powers under subsection (3) below.

(3)The powers of the court are—

(a)the power to order that payments under the order be made directly to [F90the court];

(b)the power to order that payments under the order be made to [F90the court], by such method of payment falling within section [F911(5) of the Maintenance Enforcement Act 1991] (standing order, etc.) as may be specified;

(c)the power to make an attachment of earnings order under the M7Attachment of Earnings Act 1971 to secure payments under the order.

F92(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F92(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F92(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F92(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F92(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)In deciding, for the purposes of [F93subsection (2)] above, [F94whether to exercise any of its] powers under subsection (3) above F95... , the court shall have regard to any representations made by the debtor [F96or the creditor].

(10)[F97Subsection (6) of section 1 of the Maintenance Enforcement Act 1991] (power of court to require debtor to open account) shall apply for the purposes of subsection (3) 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 34A(3) of the M8Maintenance Orders (Reciprocal Enforcement) Act 1972, and

(11)In this section “creditor” and “debtor” have the same meaning as they have in [F98section 1 of the Maintenance Enforcement Act 1991].]

Textual Amendments

F86Words in s. 34A heading substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(9); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F87Words in s. 34A(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(2)(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F88S. 34A(1)(a) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(2)(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F89Words in s. 34A(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(3); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F90Words in s. 34A(3)(a)(b) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(4)(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F91Words in s. 34A(3)(b) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(4)(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F92Ss. 34A(4)-(8) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(5); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F93Words in s. 34A(9) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(6)(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F94Words in s. 34A(9) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(6)(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F95Words in s. 34A(9) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(6)(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F96Words in s. 34A(9) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(6)(d); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F97Words in s. 34A(10) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(7); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F98Words in s. 34A(11) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 51(8); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

Marginal Citations

[F9934B Variation of orders by courts of summary jurisdiction in Northern Ireland.U.K.

(1)The provisions of this section shall have effect in relation to a registered order which is registered in a court of summary jurisdiction in Northern Ireland (whether or not the court made the order) in place of the following enactments, that is to say—

(a)paragraphs (3) to (11) of Article 86 of the Magistrates’ Courts (Northern Ireland) Order 1981; and

(b)Article 22A of the Domestic Proceedings (Northern Ireland) Order 1980.

(2)The power of a court of summary jurisdiction in Northern Ireland to vary a registered order shall include power, if the court is satisfied that payment has not been made in accordance with the order, to exercise one of its powers under subsection (3) below.

(3)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) of the Magistrates’ Courts (Northern Ireland) Order 1981 (standing order, etc.) as may be specified;

(c)the power to make an attachment of earnings order under Part IX of the Order of 1981 to secure payments under the order;

and in this subsection “collecting officer” means the officer mentioned in Article 85(4) of the Order of 1981.

(4)In any case where—

(a)a registered order is registered in a court of summary jurisdiction in Northern Ireland, and

(b)payments under the order are required to be made to the collecting officer in Northern Ireland, by any method of payment falling within Article 85(7) of the Magistrates’ Courts (Northern Ireland) Order 1981 (standing order, etc.),

an interested party may apply in writing to the clerk of petty sessions in which the order is registered for the order to be varied as mentioned in subsection (5) below.

(5)Subject to subsection (8) below, where an application has been made under subsection (4) above, the clerk, after giving written notice (by post or otherwise) of the application to any other interested party and allowing that party, within the period of 14 days beginning with the date of the giving of that notice, and opportunity to make written representations, may vary the order to provide that payments under the order shall be made in accordance with paragraph (a) of subsection (3) above.

(6)The clerk may proceed with an application under subsection (4) above notwithstanding that any such interested party as is referred to in subsection (5) above has not received written notice of the application.

(7)In subsections (4) to (6) above “interested party”, in relation to an order, means the debtor or the creditor.

(8)Where an application has been made under subsection (4) above, the clerk may, if he considers it inappropriate to exercise his power under subsection (5) above, refer the matter to the court which may vary the order by exercising one of its powers under subsection (3) above.

(9)In deciding, for the purposes of subsections (2) and (8) above, which of the powers under subsection (3) above it is to exercise, the court shall have regard to any representations made by the debtor.

(10)Paragraph (5) of Article 85 of the Magistrates’ Courts (Northern Ireland) Order 1981 (power of court to require debtor to open account) shall apply for the purposes of subsection (3) above 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 paragraph (b) of section 34B(3) of the Maintenance Orders (Reciprocal Enforcement) Act 1972, and”]

Textual Amendments

[F10035 Further provisions with respect to variation etc. of orders by [F101the family court] in England and Wales.U.K.

[F102(1)Subsection (1A) applies in relation to an application for the variation or revocation of a registered order registered in [F103the family court] (“the registering court”) made—

(a)by the person against whom or on whose application the registered order was made, and

(b)in circumstances where the person by or against whom the application is made is residing outside England and Wales.

(1A)The registering court has jurisdiction to hear the application even though—

(a)a party to the application is residing outside England and Wales, F104...

F104(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F105(1B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(2)None of the powers of the court F106... under section 34A of this Act shall be exercisable in relation to such an application.

(3)Where the respondent to an application for the variation or revocation of a registered order which is registered in [F107the family court] does not appear at the time and place appointed for the hearing of the application, but the court is satisfied—

(a)that the respondent is residing outside England and Wales, and

(b)that the prescribed notice of the making of the application and of the time and place appointed for the hearing has been given to the respondent in the prescribed manner,

the court may proceed to hear and determine the application at the time and place appointed for the hearing or for any adjourned hearing in like manner as if the respondent had appeared at that time and place.

F108(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F101Words in s. 35 heading substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 52(d); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F103Words in s. 35(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 52(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F106Words in s. 35(2) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 52(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F107Words in s. 35(3) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 52(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F109[35A Further provisions with respect to variation etc. of orders by magistrates’ courts in Northern Ireland.U.K.

[F110(1)Subsection (1A) applies in relation to an application for the variation or revocation of a registered order registered in a magistrates’ court in Northern Ireland (“the registering court”) made—

(a)by the person against whom or on whose application the registered order was made, and

(b)in circumstances where the person by or against whom the application is made is residing outside Northern Ireland.

(1A)The registering court has jurisdiction to hear the application even though—

(a)a party to the application is residing outside England and Wales, and

(b)the requirement in Article 32 of the Domestic Proceedings (Northern Ireland) Order 1980, as applied by section 29(2) or 29A(6) of this Act, is not satisfied.

F111(1B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(2)None of the powers of the court, or of the clerk, under section 34B of this Act shall be exercisable in relation to such an application.

(3)Where the respondent to an application for the variation or revocation of a registered order which is registered in a magistrates’ court in Northern Ireland does not appear at the time and place appointed for the hearing of the application, but the court is satisfied—

(a)that the respondent is residing outside Northern Ireland, and

(b)that the prescribed notice of the making of the application and of the time and place appointed for the hearing has been given to the respondent in the prescribed manner,

the court may proceed to hear and determine the application at the time and place appointed for the hearing or for any adjourned hearing in like manner as if the respondent had appeared at that time and place.

F112(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

SupplementalU.K.

36 Admissibility of evidence given in convention country.U.K.

[F113(A1)A statement contained in a document mentioned in subsection (1) shall—

(a)in any proceedings in the family court arising out of an application to which section 27A(1) of this Act applies or an application made by any person for the variation or revocation of a registered order, or

(b)in proceedings on appeal from proceedings within paragraph (a),

be admissible as evidence of any fact stated to the same extent as oral evidence of that fact is admissible in those proceedings.]

(1)[F114The documents referred to in subsections (A1) and (1A) are—]

(a)a document, duly authenticated, which purports to set out or summarise evidence given in proceedings in a court in a convention country; F115...

(b)a document, duly authenticated, which purports to set out or summarise evidence taken in such a country for the purpose of proceedings in a court in the United Kingdom under this Part of this Act, whether in response to a request made on behalf of such a court or otherwise; F115...

(c)a document, duly authenticated, which purports to have been received in evidence in proceedings in a court in such a country, or to be a copy of a document so received,

[F116(1A)A statement contained in a document mentioned in subsection (1)] shall, in any proceedings in a magistrates’ court [F117in Northern Ireland] or [F118in, or remitted from, a] sheriff court arising out of F119... [F120an application [F121to which section 28C(1) of this Act applies], an application received by the Secretary of State as mentioned in section 31(1) of this Act or] an application made by any person for the variation or revocation of a registered order or in proceedings on appeal from any such proceedings, be admissible as evidence of any fact stated therein to the same extent as oral evidence of that fact is admissible in those proceedings.

(2)A document purporting to set out or summarise evidence given as mentioned in subsection (1)(a) above, or taken as mentioned in subsection (1)(b) above, shall be deemed to be duly authenticated for the purposes of that subsection if the document purports to be certified by the judge, magistrate or other person before whom the evidence was given or, as the case may be, by whom it was taken, to be the original document containing or recording, or, as the case may be, summarising, that evidence or a true copy of that document.

(3)A document purporting to have been received in evidence as mentioned in subsection (1)(c) above, or to be a copy of a document so received, shall be deemed to be duly authenticated for the purposes of that subsection if the document purports to be certified by a judge, magistrate or officer of the court in question to have been, or to be a true copy of a document which has been, so received.

(4)It shall not be necessary in any such proceedings to prove the signature or official position of the person appearing to have given such a certificate.

(5)Nothing in this section shall prejudice the admission in evidence of any document which is admissible in evidence apart from this section.

Textual Amendments

F113S. 36(A1) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 53(2); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F114Words in s. 36(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 53(3)(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F115Words in s. 36(1) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 53(3)(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F116Words in s. 36(1A) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 53(3)(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F117Words in s. 36(1A) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 53(3)(d); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F119Words in s. 36(1A) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 53(3)(e); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

37 Obtaining of evidence for purpose of proceedings in United Kingdom court.U.K.

(1)A court in the United Kingdom may for the purpose of any proceedings in that court under this Part of this Act arising out of an application received by the Secretary of State from a convention country request the Secretary of State to make to the appropriate authority or court in the convention country a request for the taking in that country of the evidence of a person residing therein relating to matters connected with the application.

(2)A request made by a court under this section shall—

(a)give details of the application in question;

(b)state the name and address of the person whose evidence is to be taken; and

(c)specify the matters relating to which the evidence of that person is required.

(3)If the Secretary of State is satisfied that a request made to him under this section contains sufficient information to enable the evidence of the person named in the request relating to the matters specified therein to be taken by a court or person in the convention country, he shall transmit the request to the appropriate authority or court in that country.

38 Taking of evidence at request of court in convention country.U.K.

(1)Where a request is made to the Secretary of State by or on behalf of a court in a convention country to obtain the evidence of a person residing in the United Kingdom relating to matters connected with an application to which section 26 of this Act applies, the Secretary of State shall request such court, or such officer of a court, as he may determine to take the evidence of that person relating to such matters connected with that application as may be specified in the request.

(2)The court by which or officer by whom a request under subsection (1) above is received from the Secretary of State shall have power to take the evidence and, after giving notice of the time and place at which the evidence is to be taken to such persons and in such manner as it or he thinks fit, shall take the evidence of the person named in the request relating to the matters specified therein in such manner as may be prescribed; and the evidence so taken shall be sent in the prescribed manner by the prescribed officer to the court in the convention country by or on behalf of which the request referred to in subsection (1) above was made.

(3)Where any person, not being the person by whom the application mentioned in subsection (1) above was made, is required by virtue of this section to give evidence before a court in the United Kingdom, the court may order that there shall be paid—

(a)if the court is a court in England, Wales or Scotland, out of moneys provided by Parliament; and

(b)if the court is a court in Northern Ireland, out of moneys provided by [F122the Northern Ireland Assembly],

such sums as appear to the court reasonably sufficient to compensate that person for the expense, trouble or loss of time properly incurred in or incidental to his attendance.

(4)[F123Articles 118(1), (3) and (4), 119 and 120 of the Magistrates' Courts (Northern Ireland) Order 1981] (which provide for compelling the attendance of witnesses, etc.) shall apply in relation to a magistrates’ court [F124in Northern Ireland] to which a request under subsection (1) above is made as if the application to which the request relates were a complaint to be heard by that court.

(5)Paragraphs 71 and 73 of Schedule 1 to the M9Sheriff Courts (Scotland) Act 1907 (which provide for the citation of witnesses, etc.) shall apply in relation to a sheriff court to which a request under subsection (1) above is made as if the application to which the request relates were proceedings in that court.

F125(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F123Words in s. 38(4) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 54(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F124Words in s. 38(4) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 54(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F125S. 38(6) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 54(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

Marginal Citations

[F12638A [F127Rules of court]U.K.

(1)[F128Rules of court] may make provision with respect to the orders made or other things done by [F129the family court or] a magistrates’ court, or an officer of such a court, by virtue of this Part of this Act, notice of which is to be given to such persons as the rules may provide and the manner in which such notice shall be given.

(2)For the purpose of giving effect to this Part of this Act, [F130rules of court] may make, in relation to any proceedings brought under or by virtue of this Part of this Act, any provision not covered by subsection (1) above which—

(a)falls within subsection (2) of section 93 of the Children Act 1989, and

(b)may be made in relation to relevant proceedings under that section.

F131(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F132[(4)For the purpose of giving effect to this Part of this Act, rules made under Article 13 of the Magistrates’ Courts (Northern Ireland) Order 1981 may make, in relation to any proceedings brought under or by virtue of this Part of this Act, any provision not covered by subsection (1) above which—

(a)falls within paragraph (2) of Article 165 of the Children (Northern Ireland Order) 1995, and

(b)may be made in relation to relevant proceedings under that Article.]]

Textual Amendments

F129Words in s. 38A(1) inserted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 55; S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

39 Interpretation of Part II.U.K.

In this Part of this Act—

Textual Amendments