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28 1994

MAINTENANCE ACT, 1994

PART II

Recovery of Maintenance (Reciprocating Jurisdictions)

Construction of Part II .

5. —This Part shall be construed as one with the Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993.

Interpretation of Part II .

6. —(1) In this Part—

the Brussels Convention” means the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (including the Protocol annexed to that Convention), done at Brussels on the 27th day of September, 1968, as subsequently amended, and given the force of law in the State by the Acts of 1988 and 1993 and a reference to an Article of that Convention shall be construed as including a reference to the corresponding Article of the Lugano Convention;

central authority of a reciprocating jurisdiction” means—

(a) the central authority of such a jurisdiction which has been designated pursuant to paragraph 1 or, where appropriate, paragraph 2 of Article 2 of the Rome Convention, or

(b) an authority of such a jurisdiction with functions corresponding to those exercisable by the Central Authority within the State;

the Lugano Convention” has the meaning assigned to it by the Act of 1993;

maintenance creditor” includes any body which, under the law of a reciprocating jurisdiction, is entitled to exercise the rights of redress of, or to represent, the creditor;

reciprocating jurisdiction” means a Contracting State (within the meaning of the Acts of 1988 and 1993) which is declared by order of the Minister for Foreign Affairs to be a reciprocating jurisdiction;

the Rome Convention” means the Convention between the member states of the European Communities on the simplification of procedures for the recovery of maintenance payments done at Rome on the 6th day of November, 1990, the text of which in the English language is set out, for convenience of reference, in the First Schedule to this Act.

(2) (a) The Minister for Foreign Affairs may by order declare that any Contracting State (within the meaning of the Acts of 1988 and 1993) specified in the order is a reciprocating jurisdiction.

(b) An order that is in force under this subsection shall be evidence that any state specified in the order is a reciprocating jurisdiction.

(c) The Minister for Foreign Affairs may by order amend or revoke an order under this subsection.

(3) If a judgment or an instrument or settlement referred to in Article 50 or 51 of the Brussels Convention does not relate solely to maintenance, this Part shall apply only to those parts that relate to maintenance.

(4) A word or expression in this Part which is used in the Rome Convention has the same meaning as it has in that Convention and for this purpose the report by Mr. J. Martin and Mr. C. Ó hUiginn on the Convention, a copy of which has been placed in the Oireachtas Library, may be considered by any court when interpreting such word or expression and shall be given such weight as is appropriate in the circumstances.

Application from reciprocating jurisdiction.

7. —(1) The Central Authority may, on receipt of an application for the recognition or enforcement in the State of a maintenance order which has been transmitted by a central authority of a reciprocating jurisdiction, send the application to the Master of the High Court for determination in accordance with section 5 of the Act of 1988.

(2) The Master shall consider the application privately and shall make an enforcement order unless it appears to the Master from the application and accompanying documents or from the Master's own knowledge that its recognition and enforcement are prohibited by the Brussels Convention or the Lugano Convention.

(3) The Master shall cause the decision on the request to be brought to the notice of the Central Authority and, if an enforcement order has been made, shall cause notice thereof to be served on the maintenance debtor.

(4) (a) The notice to be served on a maintenance debtor under subsection (3) shall include a statement of the provisions of Article 36 (right of appeal against enforcement order) of the Brussels Convention.

(b) Service of the notice may be effected personally or in any manner in which service of a superior court document within the meaning of section 23 of the Courts Act, 1971 , may be effected.

(5) The Master may—

(a) accept an application under subsection (1) as having been transmitted by the central authority of the reciprocating jurisdiction concerned, and

(b) accept the documents accompanying the application, namely—

(i) a request that the application be processed in accordance with the provisions of the Rome Convention,

(ii) a letter delegating to the Central Authority authority to act, or cause action to be taken, on behalf of the maintenance creditor, including specific authority to enable enforcement proceedings to be taken,

(iii) a document containing the name, date of birth, nationality and description of the maintenance debtor and all other relevant information regarding the identity, whereabouts or location of the assets, of the maintenance debtor,

(iv) a document required under Article 46 or 47 of the Brussels Convention to be produced by a party seeking recognition or applying for enforcement of a judgment, and

(v) any translation of such a document,

as being such request, letter, document or translation, as the case may be.

(6) If any of the documents mentioned in subsection (5) (b) are not produced, the Master may allow time for their production, accept equivalent documents or, if the Master considers that there is sufficient information available, dispense with their production.

(7) The Central Authority may, on receipt of an application for the recognition or enforcement of an instrument or settlement referred to in Article 50 or 51 of the Brussels Convention which provides for the payment of maintenance and has been transmitted by a central authority of a reciprocating jurisdiction, apply to the High Court under Article 31 of that Convention for the recognition or enforcement of the whole or part of the instrument or settlement concerned.

Evidence in proceedings.

8. —Subject to section 21 (4), in any proceedings under this Part, unless the court sees good reason to the contrary—

(a) a document purporting to be an application for the recognition or enforcement in the State of a maintenance order and to have been transmitted by a central authority of a reciprocating jurisdiction may be admitted as evidence that it is such an application and has been so transmitted, and

(b) a document purporting to be a document accompanying such an application and to be—

(i) a request that the application be processed in accordance with the provisions of the Rome Convention,

(ii) a letter delegating to the Central Authority authority to act, or cause action to be taken, on behalf of the maintenance creditor, including specific authority to enable enforcement proceedings to be taken, and

(iii) a document containing the name, date of birth, nationality and description of the maintenance debtor and all other relevant information regarding the identity, whereabouts, or location of the assets, of the maintenance debtor,

may be admitted as evidence of any matter to which it relates.

Amendment of section 1 of Act of 1988.

9. —The Act of 1988 is hereby amended by the deletion, in the definition of “maintenance order” in section 1 (1), of “in so far, but only in so far, as it provides for the making of periodical payments”.

Amendment of section 6 of Act of 1988.

10. —The following provisions are hereby substituted for section 6 of the Act of 1988:

“6.—(1) Subject to section 8 (4) of this Act and to the restriction on enforcement contained in Article 39—

(a) a judgment, other than a maintenance order, in respect of which an enforcement order has been made shall, to the extent to which the enforcement of the judgment is authorised by the enforcement order, be of the same force and effect, and

(b) for or as respects the enforcement of the judgment, the High Court shall have the same powers, and proceedings may be taken,

as if the judgment was a judgment of the High Court.

(2) (a) The Master of the High Court (or, in the case of an instrument or settlement referred to in Article 50 or 51, the High Court) may, on application in that behalf by the maintenance creditor, by order declare that—

(i) sums which were payable under an enforceable maintenance order, which provides for periodical payments, but were not paid before the date of the making of the relevant enforcement order, or

(ii) a lump sum (not being a sum mentioned in subparagraph (i) of this paragraph) which is payable under the enforceable maintenance order,

shall be regarded as being payable under a judgment referred to in subsection (1).

(b) A declaration shall not be made under paragraph (a) unless the Master or the High Court considers that by so doing the enforceable maintenance order concerned would be more effectively enforced as respects the sums concerned.

(c) Whenever the Master or the High Court makes a declaration under paragraph (a), the sums to which it relates shall be deemed, for the purposes of this Act, to be payable under a judgment referred to in subsection (1) and not otherwise.

(3) A maintenance order shall be regarded as a judgment referred to in subsection (1) if the District Court does not have jurisdiction to enforce the order under section 7 (6) of this Act.

(4) In subsection (1), ‘judgment’ includes an instrument or settlement referred to in Article 50 or 51, other than an instrument or settlement relating to maintenance.”.

Amendment of section 7 of Act of 1988.

11. —The following provisions are hereby substituted for section 7 of the Act of 1988:

“7.—(1) In this section ‘enforceable maintenance order’ means—

(a) a maintenance order as regards the enforcement of the whole of which an enforcement order has been made, or

(b) in case an enforcement order has been made for the enforcement of a maintenance order in part only, the maintenance order to the extent to which it is so ordered to be enforced,

and ‘maintenance order’ in this subsection includes an instrument or settlement referred to in Article 50 or 51 in so far as it provides for the payment of maintenance.

(2) (a) Subject to section 8 (4) of this Act and to the restriction on enforcement contained in Article 39, the District Court shall have jurisdiction to enforce an enforceable maintenance order and—

(i) for that purpose,

(ii) for the purposes of section 98 (1) of the Defence Act, 1954, and

(iii) subject to the 1968 Convention, for the purpose of the variation or discharge of such an order under section 6 of the Family Law (Maintenance of Spouses and Children) Act, 1976 , as amended by the Status of Children Act, 1987 ,

such an order shall, from the date on which the maintenance order was made, be deemed to be an order made by the District Court under section 5 or section 5A or 21A (inserted by the Status of Children Act, 1987 ) of the Family Law (Maintenance of Spouses and Children) Act, 1976 , as may be appropriate.

(b) Paragraph (a) of this subsection shall have effect notwithstanding that any amount payable under the order concerned exceeds the maximum amount which the District Court has jurisdiction to award under the appropriate enactment mentioned in that paragraph.

(3) Where an enforceable maintenance order is varied by a court in a Contracting State other than the State and an enforcement order has been made as regards the whole or part of the enforceable maintenance order as so varied or as regards the whole or part of the order effecting the variation, as the case may be, the enforceable maintenance order shall, from the date on which the variation takes effect, be enforceable in the State only as so varied.

(4) Where an enforceable maintenance order is revoked by a court in a Contracting State other than the State and an enforcement order has been made as regards the order effecting the revocation, the enforceable maintenance order shall, from the date on which the revocation takes effect, cease to be enforceable in the State except in relation to any sums under the order which were payable, but were not paid, on or before that date.

(5) In the case of an enforceable maintenance order—

(a) any sums which were payable thereunder, but were not paid before the date of the making of the relevant enforcement order, and

(b) any costs of or incidental to the application for the said enforcement order payable by virtue of section 8 (2) of this Act,

shall, subject to section 6 (2) of this Act, be regarded as being payable by virtue of an order made under section 5 or section 5A or 21A (inserted by the Status of Children Act, 1987 ) of the Family Law (Maintenance of Spouses and Children) Act, 1976 , as may be appropriate.

(6) The jurisdiction vested in the District Court by this section may be exercised by the judge of that Court for the time being assigned to—

(a) in case the maintenance debtor under the enforceable maintenance order concerned resides in the State, the district court district in which the maintenance debtor resides,

(b) in case the maintenance debtor does not reside in the State but is in the employment either of a person residing or having a place of business in the State or of a corporation or association having its seat therein, the district court district in which that person resides or, as the case may be, the corporation or association has its seat.

(7) (a) Any sum payable by virtue of an enforceable maintenance order shall, notwithstanding anything to the contrary therein, be paid by the maintenance debtor concerned to the district court clerk for the district court area in which the maintenance debtor for the time being resides or, in a case referred to in subsection (6) (b) of this section, a district court clerk specified by the District Court for transmission to the maintenance creditor or, where a public authority has been authorised by the maintenance creditor to receive such sum, to that authority.

(b) If any sum payable by virtue of an enforceable maintenance order is not duly paid and if the maintenance creditor concerned so requests in writing, the district court clerk concerned shall make an application under section 10 (which relates to the attachment of certain earnings) of the Family Law (Maintenance of Spouses and Children) Act, 1976 , or section 8 (which relates to the enforcement of certain maintenance orders) of the Enforcement of Court Orders Act, 1940 , in respect of the sum and, for that purpose, the references in the said section 8 (other than subsections (4) and (5)) to the applicant shall be construed as references to the district court clerk.

(c) Nothing in this subsection shall affect the right of a maintenance creditor to institute proceedings for the recovery of any sum payable to a district court clerk under paragraph (a) of this subsection.

(8) Section 8 (7) of the Enforcement of Court Orders Act, 1940 , shall not apply to proceedings for the enforcement of an enforceable maintenance order.

(9) A maintenance debtor under an enforceable maintenance order shall give notice to the district court clerk for the district court area in which the debtor has been residing of any change of address and a debtor who fails without reasonable cause to do so shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

(10) In this section a reference to a district court clerk shall, where there are two or more district court clerks for the district court area concerned, be construed as a reference to any of those clerks.

(11) For the purposes of this section, the Dublin Metropolitan District shall be deemed to be a district court area.”.

Amendment of section 11 of Act of 1993.

12. —The Act of 1993 is hereby amended by the deletion, in the definition of “maintenance order” in section 11 (2), of “in so far, but only in so far, as it provides for the making of periodical payments”.