Part I U.K. Registration, enforcement and variation of certain maintenance orders

Modifications etc. (not altering text)

C1 Pt.I (ss. 1–5) applied by Administration of Justice Act 1977 (c. 38, SIF 37), s. 3, sch. 3 para. 10

4 Variation of orders registered in magistrates’ courts. E+W

(1) The provisions of this section shall have effect with respect to the variation of orders registered in magistrates’ courts, and references in this section to registered orders shall be construed accordingly.

(2) Subject to the following provisions of this section—

(a) the court of registration may exercise the same jurisdiction to vary any rate of payments specified by a registered order (other than jurisdiction in a case where a party to the order is not present in England when the application for variation is made) as is exercisable, apart from this subsection, by the original court; and

(b) a rate of payments specified by a registered order shall not be varied except by the court of registration or any other magistrates’ court to which the jurisdiction conferred by the foregoing paragraph is extended by rules of court.

F1 [(2A) The power of a magistrates’ court to vary a registered order under subsection (2) of this section shall include power, if the court is satisfied that payment has not been made in accordance with the order, to vary the order by exercising one of its powers under paragraphs (a) to (d) of section 59(3) of the Magistrates’ Courts Act 1980.

(2B) Subsection (4) of section 59 of that Act shall apply for the purposes of subsection (2A) of this section as it applies for the purposes of that section.

(2C) In deciding which of the powers under paragraphs (a) to (d) of section 59(3) of that Act it is to exercise, the court shall have regard to any representations made by the debtor and the creditor (which expressions have the same meaning as they have in section 59 of that Act).]

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2

(4) If it appears to the court to which an application is made by virtue of subsection (2) of this section for the variation of a rate of payments specified by a registered order [F3 that it is for any reason] appropriate to remit the application to the original court, the first-mentioned court shall so remit the application, and the original court shall thereupon deal with the application as if the order were not registered.

(5) Nothing in subsection (2) of this section shall affect the jurisdiction of the original court to vary a rate of payments specified by a registered order if an application for the variation of that rate is made to that court—

(a) in proceedings for a variation of provisions of the order which do not specify a rate of payments; or

(b) at a time when a party to the order is not present in England.

F4 [F5 (5A) Subject to the following provisions of this section, subsections (4) to (11) of section 60 of the Magistrates’ Courts Act 1980 (power of clerk and court to vary maintenance orders) shall apply in relation to a registered order (other than one deemed to be made by the High Court by virtue of section 1(2) of this Act) as they apply in relation to a maintenance order made by a magistrates’ court (disregarding section 23(2) of the Domestic Proceedings and Magistrates’ Courts Act 1978[F6 , section 15(2) of the Children Act 1989 and paragraph 42 of Schedule 6 to the Civil Partnership Act 2004]) but—

(a) as if in subsection (8) after the words “the court which may” there were inserted “subject to subsection (10) below”; and

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

“(9) Subsection (4) of section 59 above shall apply for the purposes of subsection (8) above as it applies for the purposes of that section.”

(10) In deciding which of the powers under paragraphs (a) to (d) of section 59(3) above it is to exercise, the court shall have regard to any representations made by the debtor and the creditor.

(5B) Subject to the following provisions of this section, subsections (4) to (11) of section 60 of the Magistrates’ Courts Act 1980 (power of clerk and court to vary maintenance orders) shall apply in relation to a registered order deemed to be made by the High Court by virtue of section 1(2) of this Act as they apply in relation to a maintenance order made by a magistrates’ court (disregarding section 23(2) of the Domestic Proceedings and Magistrates’ Courts Act 1978[F7 , section 15(2) of the Children Act 1989 and paragraph 42 of Schedule 6 to the Civil Partnership Act 2004]) but—

(a) [F8 as if in subsection (4) for paragraph (b) there were substituted—]]

“(b) payments under the order are required to be made to [F9 the designated officer for the court or for 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”;

(b) as if in subsection (5) for the words “to the [F10 designated officer for the court”]” there were substituted “in accordance with paragraph (a) of subsection (9) below”;

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

(d) as if in subsection (8) for the words “paragraphs (a) to (d) of section 59(3) above” there were substituted “subsection (9) below”;

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

“(9) The powers of the court are—

(a) the power to order that payments under the order be made directly to [F11 the designated officer for the court or for any other magistrates' court];

(b) the power to order that payments under the order be made to [F11 the designated officer for the court or for 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 theAttachment of Earnings Act 1971 to secure payments under the order.

(10) In deciding which of the powers under subsection (9) above it is to exercise, the court shall have regard to any representations made by the debtor.

(10A) Subsection (4) of section 59 above (power of court to require debtor to open account) shall apply for the purposes of subsection (9) 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(9) below”.”

(6) No application for any variation of a registered order shall be made to any court while proceedings for any variation of the order are pending in any other court.

[F5 (6A) [F12 Except as provided by subsection (5B) of this section]no application for any variation in respect of a registered order shall be made to any court in respect of an order made by the Court of Session or the High Court in Northern Ireland and registered in that court in accordance with the provisions of this Part of this Act by virtue of section 1(2) above.]

[F13 (6B) No application for any variation of a registered order shall be made to any court in respect of an order for periodical or other payments made under Part III of the Matrimonial and Family Proceedings Act 1984 [F14 or under Schedule 7 to the Civil Partnership Act 2004].]

(7) Where a magistrates’ court, in exercise of the jurisdiction conferred by subsection (2) of this section, varies or refuses to vary a registered order, an appeal from the variation or refusal shall lie to the High Court; . . . F15

Textual Amendments

F1 S. 4(2A)-(2C) inserted (1.4.1992) by Maintenance Enforcement Act 1991 (c. 17, SIF 49:3), s. 10, Sch. 1 para. 9(1); S.I. 1992/455, art. 2.

F2 S. 4(3) repealed by Administration of Justice Act 1970 (c. 31), s. 48(2), Sch. 11

F3 Words substituted by Administration of Justice Act 1970 (c. 31), s. 48(3)

F4 S. 4(5A)(5B) inserted (1.4.1992) by Maintenance Enforcement Act 1991 (c. 17, SIF 49:3), s. 10, Sch. 1 para. 9(2); S.I. 1992/455, art. 2.

F5 S. 4(6A) added by Administration of Justice Act 1977 (c. 38, SIF 37), s. 3, Sch. 3 para. 3, with effect in relation to the enforcement in one part of the United Kingdom of maintenance orders made in another part.

F6 Words in s. 4(5A) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 22(2); S.I. 2005/3175, art. 2(2)

F7 Words in s. 4(5B) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 22(2); S.I. 2005/3175, art. 2(2)

F8 Words in s. 4(5B)(a) repealed (1.4.2001) by 1999 c. 22, s. 106, Sch. 15 Pt. V(7) (with s. 107, Sch. 14 para. 7(2), 36(9)); S.I. 2001/916, art. 2(c)(ii) (with transitional provision in Sch. 2 para. 2)

F9 Words in s. 4(5B)(a) substituted (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 100(a); S.I. 2005/910, art. 3(y)

F10 Words in s. 4(5B)(b) substituted (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 100(b); S.I. 2005/910, art. 3(y)

F11 Words in s. 4(5B)(e) substituted (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 100(c); S.I. 2005/910, art. 3(y)

F12 Words in s. 4(6A) inserted (1.4.1992) by Maintenance Enforcement Act 1991 (c. 17, SIF 49:3), s. 10, Sch. 1 para. 9(3); S.I. 1992/455, art. 2.

F13 S. 4(6B) inserted by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), ss. 46(1), 48, Sch. 1 para. 5

F14 Words in s. 4(6B) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 22(3); S.I. 2005/3175, art. 2(2)

F15 Words repealed by Administration of Justice Act 1977 (c. 38, SIF 37), s. 32(4), Sch. 5 Pt. IV

Modifications etc. (not altering text)

C2 Pt. I (ss. 1–5) applied by Administration of Justice Act 1977 (c. 38, SIF 37), s. 3, sch. 3 para. 10