31 Application by person in convention country for recovery of maintenance in Scotland.
(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 Secretary 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.
(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 ,or (on appeal or remit) the Court of Session, makes an order containing a provision requiring the payment of maintenance, the 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.
(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 Sheriff 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.
(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 granted in a convention countryobtained in a convention country or territory outside the United Kingdom and which is recognised as valid by the law of Scotland;
(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
(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.
(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Section 8 of the Law 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.
(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 the clerk of the registering court, being a magistrates’ court in Northern Ireland, is of opinion that the payer is residing within the jurisdiction of another magistrates’ court in Northern Ireland, he shall transfer the order to that other court by sending a certified copy of the order and the related documents to the clerk of that other court and, subject to subsection (4) below, that clerk shall register the order in the prescribed manner in that court.
(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.
(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—
“the appropriate court” —
in relation to a person residing in England and Wales, means the family court; and
in relation to a person residing in Northern Ireland, means a magistrates’ court within the jurisdiction of which that person is residing;
“certificate of arrears” and “certified copy” have the same meanings respectively as in Part I of this Act;
“payer”, in relation to a registered order, means the person liable to make payments under the order; and
“related documents” means—
(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”;
(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.
(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 ... in the High Court of Justice in Northern Ireland under Part II of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966.
(3) An order which by virtue of subsection (1) above is enforceable by a magistrates’ court shall, 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 an order made by that court to which that Article applies.
(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3B) Where, by virtue of being registered in the court of summary jurisdiction in 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 in 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 Maintenance 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”.
(1) Subject to subsection (3B) below and section 34B of this ActSubject to ... 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 shall—
(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.
(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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—
(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
(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.
34A Variation of orders by the family court in England and Wales.
(1) The provisions of this section shall have effect in relation to a registered order which is registered in the family court (whether or not the court made the order) in place of the following enactments, that is to say—
(a) section 1(3A) of the Maintenance Enforcement Act 1991;
(b) section 20ZA of the Domestic Proceedings and Magistrates’ Courts Act 1978; and
(c) paragraph 6A of Schedule 1 to the Children Act 1989.
(2) The power of the 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 the court;
(b) the power to order that payments under the order be made to the court, by such method of payment falling within section 1(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.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) In deciding, for the purposes of subsection (2) above, whether to exercise any of its powers under subsection (3) above ... , the court shall have regard to any representations made by the debtor or the creditor.
(10) Subsection (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 Maintenance Orders (Reciprocal Enforcement) Act 1972, and
(11) In this section “creditor” and “debtor” have the same meaning as they have in section 1 of the Maintenance Enforcement Act 1991.
34B Variation of orders by courts of summary jurisdiction in Northern Ireland.
(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
35 Further provisions with respect to variation etc. of orders by the family court in England and Wales.
(1) Subsection (1A) applies in relation to an application for the variation or revocation of a registered order registered in the 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, ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) None of the powers of the court ... 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 the 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.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
35A Further provisions with respect to variation etc. of orders by magistrates’ courts in Northern Ireland.
(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.
(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.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
36 Admissibility of evidence given in convention country.
(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) The 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; ...
(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; ...
(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,
(1A) A statement contained in a document mentioned in subsection (1) shall, in any proceedings in a magistrates’ court in Northern Ireland or in, or remitted from, a sheriff court arising out of ... an application to 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.
37 Obtaining of evidence for purpose of proceedings in United Kingdom court.
(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.
(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 the 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) Articles 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 in 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 Sheriff 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.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Rules of court may make provision with respect to the orders made or other things done by the 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, rules 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.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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.
In this Part of this Act—
“maintenance”, as respects Scotland, includes aliment and any sums which are payable, following divorce, by one former spouse for the support of the other;
“maintenance order” has the same meaning as in Part I of this Act;
“order”, as respects Scotland, includes any interlocutor, and any decree or provision contained in an interlocutor;
“prescribed” has the same meaning as in Part I of this Act;
“registered order” means an order which is for the time being registered in a court in the United Kingdom under this Part of this Act;
“registering court”, in relation to a registered order, means the court in which that order is for the time being registered under this Part of this Act.
“revoke” and “revocation” include discharge.
40 Power to apply Act to maintenance orders and applications for recovery of maintenance made in certain countries.
Where Her Majesty is satisfied—
(a) that arrangements have been or will be made in a country or territory outside the United Kingdom to ensure that maintenance orders made by courts in the United Kingdom . . . can be enforced in that country or territory or that applications by persons in the United Kingdom for the recovery of maintenance from persons in that country or territory can be entertained by courts in that country or territory; and
(b) that in the interest of reciprocity it is desirable to ensure that maintenance orders made by courts in that country or territory . . . can be enforced in the United Kingdom or, as the case may be, that applications by persons in that country or territory for the recovery of maintenance from persons in the United Kingdom can be entertained by courts in the United Kingdom,
Her Majesty may by Order in Council make provision for applying the provisions of this Act, with such exceptions, adaptations and modifications as may be specified in the Order, to such orders or applications as are referred to in paragraphs (a) and (b) above and to maintenance and other orders made in connection with such applications by courts in the United Kingdom or in that country or territory.
41 Complaint for variation, etc. of certain orders by or against persons outside England and Wales.
(1) The jurisdiction to revoke, revive or vary an order for the periodical payment of money conferred on magistrates’ courts by section 60 of the Magistrates’ Courts Act 1980 shall, in the case of an affiliation order be exercisable notwithstanding that the proceedings for the revocation, revival or variation, as the case may be, of the order are brought by or against a person residing outside England and Wales.
(2) The jurisdiction to revoke or vary an order for the periodical payment of money conferred on magistrates’ courts by sections 9, 10 or 11 of the Guardianship of Minors Act 1971 shall be exercisable notwithstanding that the proceedings for the revocation or variation of the order are brought by or against a person residing outside England and Wales.
(2A) Subject to subsection (2B) below, a magistrates’ court may, if it is satisfied that the respondent has been outside the United Kingdom during such period as may be prescribed by rules made under section 144 of the Magistrates’ Courts Act 1980, proceed on—
(a) an application made under section 60 of the Magistrates’ Courts Act 1980 for the revocation, revival or variation of an affiliation order, or
(b) an application made under section 9, 10, 11 or 12C(5) of the Guardianship of Minors Act 1971 for the revocation, revival or variation of an order for the periodical payment of money made under the said section 9, 10 or 11,
notwithstanding that the respondent has not been served with the summons; and rules may prescribe any other matters as to which the court is to be satisfied before proceeding in such a case.
(2B) A magistrates’ court shall not—
(a) exercise its powers under section 60 of the Magistrates’ Courts Act 1980 so as to increase the amount of any periodical payments required to be made by any person under an affiliation order; or
(b) exercise its powers under section 9, 10 or 11 of the Guardianship of Minors Act 1971 so as to increase the amount of any periodical payments required to be made by any person by an order under one of those sections,
unless those powers are exercised at a hearing at which the person required to make the periodical payment appears or the requirements of section 55(3) of the Magistrates’ Courts Act 1980 with respect to proof of service of summons or appearance on a previous occasion are satisfied in respect of that person.
(3) In section 15(1) of the Maintenance Orders Act 1950 (service of process on a person residing in Scotland or Northern Ireland), after the words “Act 1971” there shall be inserted the words “or section 41 of the Maintenance Orders (Reciprocal Enforcement) Act 1972”.
(4) Section 3(3) of the said Act of 1950 (jurisdiction in proceedings by or against a person residing in Scotland or Northern Ireland for the revocation, etc., of an affiliation order) is hereby repealed.
42 Provisional order for maintenance of party to marriage made by ... court to cease to have effect on remarriage of party.
(1) Where a ... court has, by virtue of section 3 of this Act, made a provisional maintenance order consisting of, or including, a provision such as is mentioned in section 2(1)(a) of the Domestic Proceedings and Magistrates’ Courts Act 1978 (making of periodical payments by husband or wife) or Article 4(1)(a) of the Domestic Proceedings (Northern Ireland) Order 1980 and the order has been confirmed by a competent court in a reciprocating country, then, if after the making of that order the marriage of the parties to the proceedings in which the order was made is dissolved or annulled but the order continues in force, that order or, as the case may be, that provision thereof shall cease to have effect on the remarriage of the party in whose favour it was made, except in relation to any arrears due under it on the date of such remarriage and shall not be capable of being revived.
(2) For the avoidance of doubt it is hereby declared that references in this section to remarriage include references to a marriage which is by law void or voidable.
(3) In section 30(2) of the Matrimonial Proceedings and Property Act 1970 (which makes, in relation to such an order as is referred to in subsection (1) above which was confirmed in accordance with section 3 of the Maintenance Orders (Facilities for Enforcement) Act 1920, provision to the like effect as that subsection) the words from “but with the modification” to the end are hereby repealed.
(1) In connection with proceedings under Part I of this Act in relation to a maintenance order made by a court in a reciprocating country, where there is produced a certificate from the responsible authority in that country to the effect that the payee would, in that country, be financially eligible for complete or partial—
(i) legal aid; or
(ii) exemption from costs or expenses, in proceedings there in relation to that maintenance order, section 2(1) and (6)(c), 3 and 4 of the Legal Aid (Scotland) Act 1967sections 15 and 17 of the Legal Aid (Scotland) Act 1986 shall not apply in respect of the payee and, subject to the other provisions of that Act. legal aid shall under that Act be available to the payee without inquiry into the payee’s resources.
(2) In connection with proceedings under Part II of this Act—
(a) arising out of an application received from a convention country for the recovery of maintenance; or
(b) relating to an order made in respect of such an application,
where there is produced a certificate from the appropriate authority in that county to the effect that the applicant would, in that country, be financially eligible for complete or partial—
(i) legal aid; or
(ii) exemption from costs or expenses, in proceedings there for the recovery of maintenance, sections 2(1) and (6)(c), 3 and 4 of the said Act of 1967sections 15 and 17 of the said Act of 1986 shall not apply in respect of the applicant and, subject to the other provisions of that Act, legal aid shall under that Act be available to the applicant without inquiry into the applicant’s resources.
(3) Where, in connection with proceedings under Part I or II of this Act, a person has received legal aid by virtue of subsection (1) or (2) above, legal advice and assistance under the Legal Advice and Assistance Act 1972 shall, notwithstanding—
(i) any finanacial conditions imposed by, or by virtue of sections 1 and 4(2), (3) and (4); and
(ii) in relation to the effect of subsections (1) to (4) and (7) of section 4 of the said Act of 1967, the provisions of section 6(1)(b), of the said Act of 1972 (but subject otherwise to the provisions of the said Act of 1972)advice and assistance under the said Act of 1986, shall, notwithstanding any financial conditions or requirements to make contributions imposed by sections 8 and 11 of that Act,, be available in Scotland for that person, without inquiry into his resources, in connection with any matter incidental to, or arising out of, those proceedings.
(4) In subsection (1) above “maintenance order”, “reciprocating country”, “responsible authority” and “payee” have the same meanings respectively as in Part I of this Act; and in subsection (2) above “convention country” means a country or territory specified in an Order in Council under section 25(1) of this Act, “maintenance” has the same meaning as in Part II of this Act, and “appropriate authority” means the authority from which the Secretary of State received the application.
44 Exclusion of certain enactments relating to evidence.
(1) Section 20 of the Family Law Reform Act 1969 (power of court hearing certain proceedings to require use of blood tests to determine paternity) and any corresponding enactment of the Parliament of Northern Ireland shall not apply to any proceedings under this Act, but the foregoing provision is without prejudice to the power of a court to allow the the report of any person who has carried out such tests to be given in evidence in those proceedings.
(2) The Evidence (Proceedings in Other Jurisdictions) Act 1975 shall not apply to the taking of evidence in the United Kingdom for the taking of which section 14 or section 38 of this Act provides.
(1) An Order in Council under section 1, section 25 or section 40 of this Act may be varied or revoked by a subsequent Order in Council thereunder, and an Order made by virtue of this section may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient for the purposes of that section.
(2) An Order in Council made under the said section 1 or the said section 40 shall be subject to annulment in pursuance of a resolution of either House of Parliament.
There shall be paid out of moneys provided by Parliament—
(a) any sums ordered by a court under section 14(2) or 38(3) of this Act to be paid out of moneys so provided; and
(b) any increase attributable to the provisions of this Act in the sums payable under the Legal Aid Act 1974 or the Legal Aid (Scotland) Act 1967 out of moneys so provided.
(1) In this Act—
“enactment” includes an enactment of the Parliament of Northern Ireland;
“magistrates’ court”, in relation to Northern Ireland, means a court of summary jurisdiction within the meaning of Article 2(2)(a) of the Magistrates’ Courts (Northern Ireland) Order 1981.
(2) References in this Act to a part of the United Kingdom are references to England and Wales, to Scotland, or to Northern Ireland.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Any reference in this Act to any other enactment is a reference thereto as amended, and includes a reference thereto as extended or applied, by or under any other enactment.
48 Special provisions relating to Northern Ireland.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Any reference in this Act to an enactment of the Parliament of Northern Ireland or to an enactment which that Parliament has power to amend, shall be construed, in relation to Northern Ireland, as a reference to that enactment as amended or extended by any Act of that Parliament, whether passed before or after this Act, and to any enactment of that Parliament passed after this Act and re-enacting the said enactment with or without modifications.
(4) If the Parliament of Northern Ireland passes any enactment for purposes similar to those of any enactment in force in England and Wales which is referred to in this Act, Her Majesty may by Order in Council direct that this Act shall have effect subject to such modifications or adaptations as may be specified in the Order for the purpose of ensuring the continued operation of this Act in, or in relation to, Northern Ireland.
(5) Section 45 of this Act shall apply in relation to an Order in Council under subsection (4) above as it applies in relation to an Order in Council under section 1 or 40 of this Act.
(6) In the application of this Act to Northern Ireland, for any reference to the Lord Chancellor (including any reference which is treated as a reference to the Lord Chancellor, but not including any such reference in section 49(2)) there shall be substituted a reference to the Department of Justice in Northern Ireland.
(1) This Act may be cited as the Maintenance Orders (Reciprocal Enforcement) Act 1972.
(2) This Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint, and different days may be so appointed for different provisions of this Act, or for different purposes.
Section 22.
1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Army Act 1955 and the Air Force Act 1955
2 Section 150 of the Army Act 1955 and section 150 of the Air Force Act 1955 (enforcement of maintenance, etc. orders by deduction from pay) shall each be amended by the insertion, in subsection (5), at the end of the first paragraph of the words “ and to an order registered in such a court under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 ”.
The Naval Discipline Act 1957
3 In section 101 of the Naval Discipline Act 1957 (service of process in proceedings for maintenance, etc.) in subsection (5), after the words “Act, 1920” there shall be inserted the words “ or registered in such a court under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 ”.
4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Maintenance and Affiliation Orders Act (Northern Ireland) 1966
5 In section 10 of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966 (orders to which Part II of that Act applies)—
(a) in subsection (2), after the word “means” there shall be inserted the words “ an order made outside the United Kingdom and registered in a court of summary jurisdiction in Northern Ireland under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 or ”; and
(b) at the end there shall be inserted the following subsection:—
(5) For the purposes of this Part an order made outside the United Kingdom and registered in a court of summary jurisdiction in Northern Ireland under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 shall be deemed to be a maintenance order made by that court
The Administration of Justice Act 1970
6 At the end of Schedule 8 to the Administration of Justice Act 1970 (maintenance orders to which Part I of the Maintenance Orders Act 1958 applies) there shall be inserted the following paragraph:—
11 A maintenance order within the meaning of Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 registered in a magistrates’ court under the said Part I.
The Attachment of Earnings Act 1971
7 At the end of Schedule 1 to the Attachment of Earnings Act 1971 (maintenance orders to which that Act applies) there shall be inserted the following paragraph:—
11 A maintenance order within the meaning of Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 registered in a magistrates’ court under the said Part I.