Modifications etc. (not altering text)
C1Pt. II extended with modification by S.I. 1979/1314, art. 3, Sch.
C2Pt. 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)
(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 [F1Secretary 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.
[F2(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 [F3,or (on appeal or remit) the Court of Session,] makes an order containing a provision requiring the payment of maintenance, [F4the 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.]
[F5(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.
[F6(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 [F7granted in a convention country][F7obtained in a convention country or territory outside the United Kingdom] and which is recognised as valid by the law of Scotland;
[F8(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]
[F8(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.
[F9(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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F10
(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
F1Words substituted by Legal Aid (Scotland) Act 1986 (c. 47, SIF 77:2), ss. 45, 46(4), Sch. 3 para. 1(1)
F2S. 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
F3Words inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), ss. 60(1)(b)(i), 89
F4Words substituted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), ss. 60(1)(b)(ii),89
F5S. 31(2A) inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c.22), ss. 60(1)(c), 89
F6S. 31(4)-(6) inserted by Domestic Proceedings and Magiastrates' Courts Act 1978 (c. 22), ss. 60(1)(d), 89
F7Words 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)
F8S. 31(4)(ii)(iia) substituted (S.) for para. (ii) by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), s. 31(3)
F9S. 31(4A) inserted by Family Law (Scotland) Act 1985 (c. 37, SIF 49:3), ss. 28(1), 29(4), Sch. 1 para. 6(b)
F10S. 31(5) repealed by Family Law (Scotland) Act 1985 (c. 37, SIF 49:3), ss. 28(1)(2), 29(4), Sch. 1 para. 6(c), Sch. 2
Marginal Citations